Remainder to the right Heirs of I. S. in Life passes from the Lessor presently although it vests not presently but here the Remainder passeth not presently because the Condition precedes the Remainder as 15. H. 7. 1. if A. Grant to B. That when he is promoted to a Benefice or do such an Act he shall have an Annuity there he shall shew his Promotion if he demands his Annuity because it is a Condition precedent and to him which maketh the Grant but if he Grants an Annuity until he be promoted there he shall not shew it because the Promotion is subsequent to the Annuity and will defeat the Annuity and therefore it shall be shewed by the other party which is contray So 7. E. 3.10 A Lessee for eight years rendring 10. s. yearly and if he holdeth over to him and his heirs an action of Debt is maintainable during the Term for the Rent is a Chattle because the Fee passeth not presently for that the Condition precedes the Fee So 6. R. 2. a Lease to two for years upon Condition That if the Lessee aliens within the Term or die he shall have Fee it is holden that the Fee passeth not presently because the Condition precedes it which Cases prove That the Remainder passes not out of the Lessor at the time of the Livery albeit that the Condition precede the Remainder and proves also That the Remainder Commenceth upon Condition and proves also That the Remainder is appointed to begin after the Commencement of the particular Estate the which is contrary to the grounds of Law and therefore and for the said other causes the Remainder shall be void And so for the insufficiencie of the matter of the Bar and Form also the Plaintiff shall recover Cook Serjeant to the contrary As to the two Exceptions which have been moved That the Plea is not good because he shews not that he hath been resiant after the deaths of the Husband and Wife alwaies nor what day he entred Sir I take it That it shall be taken that he entred immediately after the death of the Husband and Wife for the Defendant hath pleaded by way of Bar and if the Bar hath matter of substance and is good to a common intent it sufficeth although it be not good to every special intent and therefore in the Case of 33. H. 6. fol. 24. where the Defendant pleads That the Testator made the Plaintiff and one R. his Executor Judgement c. The Plea was good without shewing that he was made after that the Plaintiff was made sole Executor because it shall be intended after So 10. H. 7. 15. by Keble in Trespas the Defendant pleads his Free-hold good because good by Common intendment yet the Plaintiff might have an Estate for years and it may stand with his Bar and by which he may punish the default but such special matter will not be intended So 6. E. 4.1 in Debt upon an Obligation the Defendant saith That he hath done such things as was contained in the Indenture and at Issue and found for the Plaintiff and spoken to in Arrest of Judgement because the Defendant said not that the two Covenants were all and so had not alleadged the performance of all but held good because by Common intent there shall not be intended more then two Covenants if the Plaintiff shew not the contrary So 3. H. 6.4 in Formedon he gave not prima facie a good Bar because it intends a general gift and yet it may be That the Land was recovered in value and then the Plea is not apt for other Land was given So 3. H. 6.3 In Debt nothing in their hands pleaded by Executors good yet it may be that other goods first not the Testators at the day of his death are come to their hands in place instead of other goods So 21. H. 6.17 In Assise the Defendant was in by discent where he had a mean Title which tolled the Assise of the other shall not be void by the said recovery but this shall not be intended without shewing so discent and entry in Bar good yet it may be that a stranger abated and dyed seised and the Heir could not enter but if shall not be intended without shewing specially but when a thing Commenceth in respect of the time then the certainty of the time shall be shewed fol. 24.27.33 as 20. H. 7.12 by Rede A Servant which demanded 20. s. Sallary for his service by the year ought to shew the expiration of the year because the Action is given in respect of the year past and the time is parcell of the cause of the Demand and precedes the Demand but here the time pursues the Remainder and is not cause of the Remainder and therefore we ought to shew it so certainly as where time gains a thing for here it goeth in defeasance of the thing and therefore the Bar is good notwithstanding the said two Exceptions besides it seemeth to me the Remainder is good For first he hath an Estate here upon which the Remainder may be grounded here the remainder is appointed thereupon but the cause wherefore the Remainder shall not be good is alleadged in two great points viz. because the Fee passeth not presently forth of the Lessor and also for that the Remainder cannot pass upon Condition And it seems to me That the Remainder passeth out of the Lessor presently howbeit that it vests not presently as in Litl 81. A Lease for five years if he pay within the first two that then he shall have Fee the Fee passeth out of the Lessor presently so the Remainder to the right Heirs of I. S. in life and a Remainder may Commence upon Condition as a Lease for life upon Condition That I. S. Marry my Daughter during the state for Life which shall remain to him is good because he hath an Estate upon which it may be grounded So 34. E. 3. Devise for Life upon Condition That if the Heir to whom the Reversion discends disturbs Tenant for Life or his Executors of their Administration That then the Land shall remain to the Daughter of the Devisor and to her Heirs and dyeth Tenant for Life dyeth the Son of the Daughter brings his Formedon against the Heir because he disturbs the Tenant and also the Executors of the Tenant traverse it and at issue and upon this issue is joyned which should not have been so if the Remainder had not been good Also if Assent as 18. E. 4. 12. by Catesby ante 8. post 31. to the Diseisen made before to anothers use may Traverse the Free-hold from one to another à fortiori a condition may namely where the Franck-Tenement precedes to which a Condition may be annexed Morgan Serjeant for the Plaintiff The Plea is not good because it doth not shew the day in certain of the death of W. nor of the Husband and Wife but he argued not this Also it is not good because he shewed not the
in force until after the Proclamations that then it shall barr tayl because otherwise the Proclamations are in vain for to give notice of the Fine if the party cannot defeat the Fine before all the Proclamations ended by Entrie Claim or Action Tenant in tayle of land grants a Rent by the render of a Fine or grant the nomination of an Advowson by the Rendor or Tenant in tayle of a Rent disseises the Tenant of the land and levies a Fine of the land and Proclamations passe this is no barr to the issue because the Fine was not levied of the thing intayled by Thorneton but if Tenant in tayl of a Rent Advowson Tithes Common c. levies a Fine and dies and after the Proclamations passe the issue is barred by the Statute yet the Fine was not a discontinuance because things which lie in grant but there he may claim where entrie lieth not and good for to defeat the Fine and Proclamations and to save the tayle But if Proclamations passe a Formedon depending the issue is barred by this Statute of 32. H. 8. otherwise it is if one if one brings an Action within five yeares upon the Statute of 4. H. 7. and the five yeares incure hanging the Action because 32. H. 8. favours not estates tayle and is stricter against them then 4. H. 7. against a stranger because 4. H. 7. allowes benefit to a stranger to persue his Action within five yeares 32. H. 8. before the Proclamations incurred nor without recovery also Lease executory grante by the render of a Fine by tenant in tayle shall be good against his issue after Proclamations incurred after the death of the father If a man makes a Lease for 21 yeares or for life to one and presently maketh a Lease for one and twenty yeares of this to another by Indenture or by Fine rendring Rent the Lessor shall have an Action of debt for the Rent by reason of the Estoppell for every one is Estopped against the other to say that the possession passeth not but if the second Lessee enters and be expulsed by the first Lessee he may well plead this matter in Bar against the Lessor in an Action of debt And so rent by Estoppell avoyded by entry and expulsion Tenant in tayl maketh a Lease for fourty years to commence ten yeares after rendring Rent and the next day dies the issue enters and infeoffs I.S. within the ten years and after the ten years the Feoffee waves the possession and Lessee enters and payes the rent to the Feoffee which accepts it Now he hath made the Lease good for by the Feoffment the Lease was not avoided because it was an Act indifferent and Eligible and he could not make his Election before his time and then this Election affirms or disaffirms a voidable Lease And if one entry of the issue avoids not a Lease executory A forliorâ— a descent of the Remainder where entry fails shall not avoid it but a rent charge he shall because there the issue hath not Quid pro quo and to his disadvantage the entry of the issue and Feoffment over dischargeth the Rent charge granted by his Father 14. Ass pl. 4. So one Statute 9. E. 3. contrary but no Law by Plowden and Bromley for that the Remitter dischargeth the Execution as well as the Rent charge Trees sold by Tenant in tayl and not severed in his life the bargainee shall not have them 18. E. 4.6 If the Plaintiffe prayes not the Prothenotary to enter his judgement nor pay for it the judgement shall not be entered without the order of Court Davies against Pepys THe obligee may charge the Heire or Executor at his Election where they both have assets P. 15. El. in the common Pleas. Debt but not doubly for if he be satisfied by the one the other shall be discharged by Audita querela The King untill 33. H. 8. could not touch the Land or Heire of his debtor if he had goods sufficient by Magna Charta cap. 8. but other persons were left at large Advowson and other Lands were extended for this debt Debt upon an Obligation against one as Heire in the debet detinet adjudged good otherwise it is against Executors for Executors are debtors and have their assets in one anothers right scilicet in the right of the said Testator but the Heire hath the Land to him discended in his own right and so the property which he hath in the assets maketh the debt his proper debt And therefore if he dies his Executors shall be charged with the debt of his Father and not his Heire notwithstanding he hath the Land by discent for that he claimes it from his Father and not from his Grandfather which was debtor as it seemeth by the Booke of Entries fol. 171. title Debt Yet inquire by Plowdon And if the Heire cometh not in and confesse the action and the truth of the Asserts discended then he shall be charged as for his own debt by Capias ad satisfaciendum fieri facias or elegit So if he be condemned upon default nihil dicit false plea or demurrer as Greensmiths Case is 15. El. or upon nihil dicit as Killegrewes Case is 3. Eliz. or upon any other Plea or not pleading c. otherwise of Executors which are debtors but in anothers right there Execution shall be of the goods of the deceased onely and not of their proper goods and in debt against the Heire all the Land which he hath by discent shall be put in execution by the Common Law and in no other Case Wast by cleer Haddon against Brook IF a man purchase Lands and die without Issue and without Heire on the part of his Father P. 15. El. in the Common Pleas. the Heire of the the Mother of his Father shall inherit him and not the Heire on the part of his own Father Adjudged For the Heire on the part of the Grandmother on the part of his father which conveys by the Father which is a Male is more worthy of bloud then the Heire on the part of the mother of the Purchasor which conveyes immediately by a Female and not by a Male But if both agree in equall dignity of blood there the neerest Heire shall be preferred as the brother of the Grandmother of the part of the Mother of the Purchasor shall be preferred before the brother of the great Grandmother of the part of the Father for he is nearest and the dignitie of their blood as to the Purchasor is equall for Proximitie keepeth place on the part of the Females conjoyned by marriage to the Males from whence such blood is once derived by a Male to the Purchasor by the whole Court land purchased by the Father discends never resorting to the blood of the Mother of his Sonne because strangers to the blood of the Father 39. E. 3.29 No woman after the Wife of the Father purchasor shall have the Land when once discended because
thing shall be as this to which it is referred it As if a man make a Lease for so many yeers as I. S. hath in the mannor of D. there he shall have so many yeers as I. S. hath and shall take avermen that I. S. had so many issiut tale corodium quale I.S. nuper habuit So 11. H. 4. 20. H. 7. grant office taking such fee as I. S. which executed the same before had ought to be shewed what he had So 20. E. 3. the King granted to Litales liberties that the Town of N. had by shewing of the records or writings prove their liberties the grantee shall have the like Browning against Beeston LEase for yeers by Indenture by which the Lessee Covenants and grants to render and pay for that land 1 Mar in ba. Ray Trespass thirty seven pound yeerly at two feasts of the yeer naming them or within two moneths after at a certain place out of the Land and moreover Covenants grants if the said rent and farm of thirty seven pounds be areare and not paid at the time limited without any demand of the Lessor then the Lease shall be utterly void extinct and of no effect and that it shall be lawful for the lessor to re-enter and after the rent was not paid and before the entry the lessor maketh a new Lease and the first Lessee bringeth trespas against the second Lessee and he pleads the matter aforesaid and pleads the condition in this manner as in the Indenture is contained and saith not precisely that the Lessee had Covenanted as aforesaid And also said that the Rent was arear by the space of two moneths next after the said feast and adjudged for the plantiff for these two causes only 1. That the pleading of the Covenant which is contained in the Indenture that the first Lessee hath covenanted is not but a recitall and no express averment that he hath made such a Covenant in facio fol. 143. by Bromly 2. Because that the pleading of the Rent arear for two moneths varies from the Indenture which is after two moneths fol. 143. b. by all contrary to Catlin for he said that this is to be intended so if necessity Matters in Law are left at large but the better opinion was for the defendant If this Covenant and grant of the Lessee to pay thirty seven pounds yeerly be a reservation of the Rent or not and by Ramsey fol. 132 it is not 1. For that it is not issuing out of the Land by the way of Charge for pro terra implies a cause of the grant and is not words to Charge the Land 2. It is not a Rent service for default of words of reservation of the lessor as reddendum reservandum tenendum c. for this commences by words of the Lessee and which amounts not to a sum in gross because it goeth not with the revertion as he which hath Land on the part of the mother maketh a Lease for yeers by Indenture the Lessee Covenants and grants to pay to him and his heirs twenty shillings Rent the Lessor dies without issue the heir on the part of the mother shall have the revertion and on the part of the father the Rent for that it is a some in gross and not a Rent incedent to the revertion 3. It is not farm because it is not a Rent because they are all one 4. It is a void condition if it be a condition because it refers to the farm and Rent where there is not any such as a condition that the Feoffee shall infeoffe a Corporation which is not or his wife is voide because the first is impossible and the other against Law but the state because it is Precedent in defeasans of which they are made shall stand good Stamford and Walsh Justices fol. 134. It is a Rent first this Covenant and grant is equivalent to reservation and is by Indenture in which the words are the words of both and taken for the words of him which most aptly speaks them as a Rent upon a Feoffment Litl 47. is a grant of the Feoffee and in Judgment of Law shall dispose words which have substance formality and words there shall be taken indifferently For all parties assent and are privy to the speaking of them But words of a deed poll taken more available to the grantee 20. H. 7.8 by Brian and the Law expounds one word in the sence of another as 10. E. 31. 14. H. 8.2 21. E. 3.49 Reverter for Remainder So it taketh a word spoken by one for the word spoken by another and namely by Indenture and although it were not a Rent but a sum in gross yet it extends to it and to issue out of the Land for the Law because it is spetially alleadged the ground of payment of a sum to be for the Land and yeerly to be paid and the one is executory for the other For before fol. 71. if Land recovered by an elder title shall not pay which hath not the thing which ought to pay as 15. E. 4.4 if he may not have the ancient Pale he is excused to make a new so 9. E 4 10. if he will not give counsell the other shall stay the Annuity and 39. Assise 23. Rent for equality of partition charge the Land parted not mentioned because the Rent was granted and executory for the land So 2. H. 7 5. it shall discend to the heirs of the grantee without naming because it cometh in respect of the Land which should discend to the heir and when the ground of the matter appeareth the Law supplies the fault of the words because the Law respects the ground of the matter and consideration Gawdy It is not a rent fol. 136. in 39. H. 6.33 all the words shall be taken the words of one party viz. The first in the Indenture wherefore they are not the words of both because it estops not the other party and an estopple discends upon the Heir of him which is Heir at the Common Law because he is Son by the half venter neither Sister or Brother by the entire bloud and although they agree to have the same yet how viz. as a rent or not is not parcel of their agreement So it shall not be construed a rent because words may have a reasonable construction otherwise in 22. E. 4. in the case of the Prior of Bingham the Covenant was of a rent which shall be intended rent service the Fine saith not predictum redditum but was of five acres and was for the land and the Grantor was Tenant so holden there to be an annuity so here Morgan it is a rent f. 137. b. for the assent of the parties is the chief matter to be considered and not who speaks for the Lessor shall not have debt for the rent reserved unless it be a Contract and it is not a Contract without the assent of all and the words comming out of the mouth of
end and expiration of the first Term of years the Lessor maketh a Lease for life to the first Lessee for years during the first Term and the second Lessee Enters and upon an Ouster bringeth Ejectione firme and by the Court it well lyeth 1. By the Law by a Grant of the reversion of the Farm the Farm and all the Demeasnes of it pass because it is nomen collectivum and certain in its self and so it was adjudged in the case of Bridges That by the Demise of the Farm the reversion and rent incident to it passeth 2. That the word Reversion shall be intended land reverting in the premisses and the habendum and not the estate in reverter which hath his continuance but in respect of the Term and during it it is a Grant of the reversion habendum the farm or land or reversion after the particular estate ended are all one 3. That the second Lease for years commencing by any determination of the first Lease whether it be in Law or in Deed and the expiration refers to the Term and not to the years Term is an estate in or for years and is finished when the estate is finished and this may finish when the years remain If a man marry with a woman Termor and the woman dies her husband shall have the Term for notwithstanding that the marriage hath not divested this out of the woman during coverture yet by her death this is given to the husband by Act in Law because it is a thing in possession and not in Action The Law is the Common use in Letters Pleas and Judgements and the Common Law is but common use by Anthony Brown fol. 195. Stradling against Morgan EXceptions alleadged in arrest of Judgement 2 El. Exchequer debt upon not guilty pleaded by the Defendant and found against him 1. The Plantiff hath shewed in his Declaration That the Defendant was then receiver c. and saith not That the Mannors were the Queens then and therefore shall be intended more strong against him then it should be to a common person and by consequence the Defendant is Baily to a common person by the Court. 2. That no receiver or Baily accomptant of a common person shall be within the Statute of 7. E. 6. c. 1 but onely of the Queen by the Court. 3. That the Action was not maintainable and the matter well alleadged lieth in the Queens Courts at Westminster notwithstanding the Statute of 34. and 35. H. 8. for Wales for that they are in the Affirmative and not in the Negative 4. That by this Statute an Action of debt by original Writ lieth for the forfeiture in the Exchequer howbeit that the party hath not cause of priviledge there 5. The Plaintiff ought to make mention of the Statute of 38. H. 8. and 7. E. 6. in his count for that the one is founded upon the other 6. He ought to shew expresly in his Count That the Queen was seized and made him her Bedel 7. Jeofails remedies not mispleadings in counts adjudged in Moon and Cliffords case In Debt the Plaintiff counts That whereas he was Bedel and Collector of certain Mannors by vertue of Letters Pattents of H. 8. and had a Fee for it the Defendant being Receiver of the said Mannor in 3. and 4. P. and M. took extortion for the payment of his Fee viz. 4. d. for every pound against the form of the Statute of 7. E. 6. the Defendant pleads not guilty and found against him And yet judgement given against the Plaintiff because the Count was incertain to whom he was Receiver and shall be intended against him then done to a Common person and a Receiver of a Common person is not within 7. E. 6. yet within the words for the intent of the makers shall be observed in the exposition of Statutes and so acts general in words have been expounded to be but particular where the benefit hath been particular As the King shall not have Wardship of lands which discends to the youngest Son but of that which discends to the heir general 12. E. 4. Stamford fol. 8. yet the Tenant dyed seized of others in Fee because the Statute of Praerogativa regis cap. 2. intends where the land is holden of the King and a Common person discended to the same Heir where one is Heir to the Tenant And Praerogativa Regis cap. 3. intends not that Soccage in capite shall give to the King primer seisen of lands holden of a Common person yet the words are general before fol. 109. Stamford Prerogative fol. 13. So Marlebr cap. 4. intends where Signiory and Tenancie are in the same County and therefore the Lord may bring a Distress taken in one County to a Mannor in another County of which the land is holden 1. H. 6.3 30. E. 3.6 before fol. 18. So Glouc. cap. 1. giveth Damages to the Disseisee against him which is found Tenant after the Disseisor for that he is Tenant by his own agreement and therefore the Disseisee shall not recover Damages against him which agrees not to a Feoffment made to him and others by the Disseisor yet he is Tenant but not Tenant by his agreement Litl Remitter fol 153. so long 5. E. 4. fol. 142. if he hath view in a precipe and afterwards abates the Writ for false Latine or for some other cause apparent he shall again have another Writ because there the Court might have abated this without motion For W. 2. cap. 49. although general intends where the Tenant abates the Writ by exception not apparent by 25. E. 3. cap. 16. by non-tenure of parcel no Writ abateable but for the quantity intends if the thing demanded be several as Acres but all the Writ shall abate where the thing demanded is entire as a Mannor before fol. 109. and the intent of the Statute never was contrary to the Text. By W. 2. cap. 25. if one fail of a Record he shall be a Disseisor yet a woman Covert shall not be 11. H. 4.50 nor infant because excepted by the intent yee in words hath included all So extenders shall not pay presently according to the words of Acton Burnel which ought to answer presently c. but shall be debtors presently with the duty and chargeable with the payment and daies payable of the rent or Revenues receiveable So by Exposition it seems against the Text of the Statute and is not because the intent of the makers guides them to it Of the part of the Defendant it was argued That the Action shall be sued there in Wales where the receipt is alleadged although that Wales is united to England by 27. H. 8. because by the same Statute Wales is divided into 12. Counties and by 34. and 35. H. 8. four Justices are appointed for wales viz. one for every three Counties and hold plea of all things within their circuit and one seal appointed for every circuit and all Actions suable there by the words of
cannot do any thing without Record And so Acts that the King doth touching things which he hath in his body naturall require the same circumstances and order as things which he hath in his politique body by the union thereof for the thing possessed changeth not from the person of the King but the person nor doth the possession change the cause of a thing possessed Henry the 4. which was Duke of Lancaster held his Dutchie annexed to the Crown as parcel of it by the assumption of the Crown and because his Title to the Crown was defeasable and because he would preserve the Dutchie to his Heirs if he should be removed from the Crown he severed it from the Crown by a Statute made 1. H. 4. as it was before onely in course of inheritance of the Land and of the Government of it viz. for the manner of Conveyance as it was before in the hands of the Duke as by Livery and Attornment but not severed from the Crown for the prerogatives of his person as 10. H. 4. 7. H. 4. the King had a scire facias against the Lord Le strange with a non omittas for the Dutchieland So 3. H. 6. Rot. 112. the Committee of a Ward hath aid before issue and a procedendo with a Clause of not going to judgement Rege inconsulto So the person of the King for Dutchie land taken to be higher then a Duke because he shall not have aid untill after issue of the Duke for that he is a Common person and shall make a Lease by the name of KING because it drowns the name of DUKE in his Realm therefore Officers finding that he held of the King as of the Dutchie and not as of the Duke of and by 3. H. 5. all Charters of the Dutchie land shall be sealed with the Dutchie Seal or should be void to the end that all possessions of it should be distinct used and known from the possessions of the Crown for the policie aforesaid because he was the Lineal heir to the Dutchie and as the Dutchie was in the hands of H. 4. so in like manner it was in H. 5. and H. 6. But E. 4. because he was lawfull inheritor to the Crown annexed the Dutchie of Lancaster and made it to be forfeit to the Crown and so he altered the course of inheritance of it out of the natural body into the politick body of the King and his Successors but not in the manner of Government name c. but separates it from other possessions of the Crown in conveyance of it by another Seal and other means viz. by Livery and Attornment which are used for the possessions thereof as 21. E. 4.60 Land of the Dutchie in the County Palatine passe by Pattent out of it by Livery because there he hath it as Duke and by the Statute of 1. H. 7. the Dutchie was severed from the Crown and made inheritable to the natural capacity of the King as it was in H. 5. because H. 7. discended of the House of Lancaster so is it in E. 6. the Queen made a Feoffment of the Dutchie Land forth of the County Palatine to be holden in Capite the Feoffee shall hold in Capite of the Crown and not as of the Dutchie for that the King is not Duke within his Realm but may be when he is out of the Realm Willion against the Lord Berkly A Fine was levied to two and to the Heirs of one 4. Eliz. in C.P. in an Ej. firme with Grant and Render to the Conusor in Tail the Remainder to King Henry the seventh and to the Heirs Males of his body ingendred remainder to the right Heirs of the Conusor the Conusor dies without issue and after H. 7. entred and died seised and H. 8. gave the land to the Queen his Wife for her life and died E. 6. Granted the reversion to one and his Heirs and dyed without issue the right Heir of the Conusor entred and his entry adjudged lawfull So the King shall be in a worse condition then a common person for a common person may bind the inheritance by a common Recovery suffered by him otherwise of the King by W. 2. cap. 1. after fol. 244. a. 1. That the Writ of Ejectione firme that wanteth words bona Cattalla ibidem inventa cepit asportavit is good if the truth of the matter be so and proces of utlarie lieth in this writ by the Common Law fol. 228. 2. The Entry of King Henry the seventh is lawfull without office for that the Law casts the Freehold upon him otherwise it is where he taketh an estate by Office as Ward Perquisites of villains c. and the right Heir may enter without Office or Ouster le main by the same reason fol. 229. a. 3. Where the parties agree upon the matter in deed and conclude upon the matter in Law thereupon Nilrefert but the Court shall adjudge according to the Law fol. 230. 4 Recitall of one part of a generall Statute is good enough otherwise it is of a particular Seatute fol. 232. a. 5. Omission of the date or place of Letters Patents is not materiall in pleading not Averment fol. 231. 6. A feoffment pleaded without entry of the Feoffee is good because it is included in the liverry fol. 232. b 7. The fee vests by the guift before the Statute of W. 2 and is made more perfect by the means of the issue fol. 233 a. 8. The pleading that H. 7. had issue and died without issue is repugnant of his own shewing otherwise it is where it cometh on the part of the defendant fol. 233. 9. The pleading that one enter untill that the Lessor entred upon him and made the Lease is not good there without saying that he custed him and made the Lease The King shall be bound by the Statute of W. 2. of gifts conditional for that it is in preservation of an inheritance in benefit of the publike good and restitution of the intent of the donor and the exposition that the donee might alien after issue before the Statute of Gifts conditional hath been a common error As to the matter in Law it was said by the Sergeants of Counsel with the defendant that the capacity that the King hath in his naturall body after that he is King Remains and the State Royall confounds not this capacity as 45. ass pl. 6. Henry the third gave the Mannor to the Earl of Cornwall in tayle who exchanged it by a deed for another Mannor and died without issue and warranty and assets discended upon Edward the first his heir he is barred and therefore the assignee of the party to the exchange had restitution out of the hands E. 3. who had seised it and so by this warranty and assets which discended upon the naturall body of the King was a Bar to the reversion that he demanded in his body politike And as a King may take as heir by discent in his
which ought to pay it 13. E. 4.6 The Title of the King appeareth yet he is not party the Court of Office shall adjudge for him Stamford cap. 29. fol. 96. Fitzh nat br 38. E. 31. 6. H. 7.12 and 11. H. 4.71 by customes the custom of London to retain a pledge cujuscunque fuerit until he pays binds not the King 35. H. 6.35 nonsale in market overt 35. H. 6.28 and Doctor and Student 40. nor Wreck Waise nor Stray binds not the King 35. H. 6.26 27. Custom that all distresses taken within his Mannor shall be impounded there binds not the King 21. E. 3 4. by Statutes which binds not the King where he is not named yet he shall take advantage of them As of the Stat of Waste of 9. R. 2. c. 3. of Error and attaint by him in reversion upon a recovery against Tenant for life And of W. 2. c. 7. fol. 140. If the King as Heir to his mother brings asur cui in vita the Plea shall not be delayed by the Nonage of the Heir the King not named is not restrained by Magna Charta cap. 10. upon which the Ne injuste vexes is founded for to avoid incroachment That if the King incroach more then he ought he hath no other remedy then by Petition The King bringeth a Quare impedit in the Common Pleas good notwithstanding Magna Charta quod communia placita c. 31. E. 3.18 E. 3.22 before fol. 240. Plenarty no Plea against the King 43. E. 3.14 Non obstante W. 2. cap. 5.32 H. 8. cap. 2. Of Limitations binds not the King The King may not suffer a Common Recovery for to Dock the Tail as a common person may because no precipe or Covenant lieth against him 12. H 7.12 by Constable So the King shall be in a worse condition then a subject or common person to bar the issue Anthony Brown Justice The name of King drowns the Sir-name of the King and includes it and his proper name also and this word of substance by it self may not be omitted in purchases Pattents or Writs Land given to Henry the seventh omitting King giveth nothing to him omitting his name of Baptism So a gift by him by these words in the Pattent Rex concessit That the name Politick of the King includes his natural name and when this name is conjoyned to his natural person it altereth the quality and degree of the person natural in the estimation of the Law So if that he be within age he shall be adjudged of full age and his attainder frustrate when he is King that the greater removes the Imperfection of the Lesser before fol. 138. the body politick hath the preheminence of the natural body as Land given to the King by the name of Baptism and of King also as to Henry the King and to his Heirs this shall go in succession as the Crown and if he dieth without issue the Heir of the part of his mother which hath the Crown shall have the Land also because this name King being the greater shall have the greater preheminence in the purchase and shall draw the land with him So that his brother of the half bloud being King shall have it yet here the King shall take in such body and in such estate and condition as the Donor limits and not otherwise So if a Gift had been made before the Statute to the King and the Heirs of his Body he had taken Fee Conditional as another Common person That if he dies without issue the Donor should enter without Office And if the King before the Stat. giveth to one and his Heirs of his body there the King shall not have the Reversion more then a Common person should have and there his Donee might alien after issue because the person of the King shall not rule the estate of the land but on the contrary for to make Remitter right and possession ought to discend to one person simul and semel 19. H. 6.59.58 and 45. before the Statute after Issue the Donee might do all acts of a full Fee because then he had full Fee and inheritance and not before 5 6 7 and 8. E. 3. And the words in the Statute hath given prius facia non extenditur intends not the Donees made by the Donors before the Statute but of alienations made by the Donees before the Statute and lawfully and after issue as a Lease for life and release of Tenant in Tail before the Statute good and barred the issue in Formedon after the Statute because it was not voidable neither before nor after the Act if it was according to the power that the Common Law permitted to them 44. E. 3. But the Statute extends as to Alienations after the Statute where the Gift was before So as to the Alienation before the Statute if it were not lawfull as a woman Tenant in Tail taketh Husband having issue they alien before the Statute the issue shall have a Formedon after the Statute that is a discontinuance to the wife because Covert and when she dies a right discends to the issue but if they have aliened by Fine it is good and bars the issue because there it is duly made in respect that she is examined 4. E. 2.12 H. 4.7 before the Statute the King might not Alien before issue had as a Common person might not because the King could not do wrong and his Prerogative could not alter his estate yet the person of the King might alter the course of the thing as purchase of the King shall discend to the eldest daughter onely but if land discend to the King another or Gavel kind to him and his brother the King shall have but the Moity but this Moity shall discend to his eldest Son onely because the quality of the person may alter the discent not the estate be it Fee or Tail So that the estate shall be in the King as in another before fol. 234. and before issue had the Donee could not alien after issue he might and this mischief and other Acts of the Donee the Common Law permitted to Bar issues and the Donor until remedied by the Statute So the Common Law permits other wrongs as Lessee to make waste So if one Joynt-Tenant takes all the profits of the land the other is without remedy at the Common Law Doctor and Student fol. 32. So if the King kill a man So disinheriting of another as here post prolem is a wrong suffered by the Common Law which otherwise the issue should have had and if the issue had not issue then the Donor before the Statute the Donor had not a Reversion yet the land reverted to him as land escheated to the Lord neither had he a Reversion after the Statute of W. 2. c. 1. Yet no word in the Act divides the Statute but the Construction of the Statute ex consequenti divides the estate for to execute the will of the Donor by the intent of
the act which amounteth to so much that the precise words and the Statute restrains the estate and not the person of the Donee And the Prerogatives are in respect of the person of the King and goes in his person which the King by Prerogative without other act cannot enlarge but in taking of the estate is restrained with the estate insomuch that the act saith Dominus Rex perpendens c. It sheweth that the King is named effectually and so bound and when it provides remedy for the mischief it is not to be presumed that he intended to be at liberty to do the mischief every thing which is the intent of the donor shall be within the Stat as plainly as if it had been expressed as other estates Tail which are not mentioned in W. 2. Litl fol. 5. Lands intailed shall not be charged against the issue for the debt of his father to the King by Anthony Brown who said That it was so adjudged in William Browns case which was his Father Puttrel fol. 240. otherwise which proves that the Statute of Donis Conditionalibus binds the King Dier Chief Justice The King onely is a good name of purchase and is the highest name of honor and drowns all other names of honor and is certain enough but not so used without his name of Baptism And the name King contains both bodies natural and politick and Heirs implies Heirs and Successors and the adding of Successors is a new devise The Donor may limit in what capacity the King shall take and â—ail may be to the King as well as to a Common person That H. 8. entailed the Crown to him and the Heirs of his body the will of the Donor is the effect of the Statute of West 2. that every thing which is against his will is reformed by the Act and every thing which is his will is made Law by this Act and therefore this Tail shall not be forfeit for Felony Litl 169. it shall not be charged by the donee 14. H. 8.7 by Roo 5. H. 6 14. nor alien neither shal the second wife be endowed 46. E. 3.24 nor the second Tenant by the courtesie now 46. E. 3.5 and to express those in the Act is superfluous because included in the proviso quod voluntus c. And these three Tails mentioned there viz. Special General and Free Marriage are but examples and not as containing all Tails that his will is a law to limit other Tails Fee after issue at the Common Law is Tail now 12 E. 4. and 3. and Fee in the Donor by implication of the Act because it restrains the Donee to do the Acts of Fee or no Fee without his properties And therefore it shall be intended That the Act would not that the Donee should have Fee because it would not make an Act of Fee and it is no Tail because the Statute is limitted Docked or cut off The King shall be bound by the Statute of W. 2. de donis conditionalibus for that it is made in preservation of the inheritance in benefit of the Common wealth and in restitution of the observation of the intent and will of the giver and in Restitutions the King hath no favor but the party restored in favor as an Heir restored to a Mannor shall have the advowson without mentioning of it So a Bishop to the Temporalties shall have Knights Fees and Advowson 5. E. 3.238 41. E. 3.5 and Brian Townsend Davers and Vavasor who took this so or thought that the King should have but an estate tail that otherwise the Remainder over will be invailable and the Exposition that the Denee might alien after issue before the Statute is Communis Error Dame Hales against Petit. LEase for years to the Husband and Wife the Husband drowned himself M. 4. 5. El in the â— P. in Trespass and so became a felo de se the Wife enters an Office is found the Q. shall have the whole Term adjudged 1. The quality of the offence is murther because that it was upon malice prepenced otherwise of Homicide also it was made Nullo sciente nullo praesente 2. It is an offence against nature the Law of God and to the King for to kill his Subject and deprive him of one of his mystical members whereof he is the head and by breaking of his peace and for the ill example given to others 3. He shall forfeit for this Felony all Goods Debts Chattels real and personal which he had at the time of the Act done which was the cause of his death viz. the casting of himself into the water and the forfeiture shall have relation to this act done in his life and is an Attainder in Law to that purpose but not to make Corruption of bloud forfeit Dower or make Fee-simples escheat by the Court. 4. Although the wife be remitted to the Term by the survivor yet this is defeated by the office ex post facto 5. Where the Bishop maketh a Lease for years which is not confirmed in his life it needs not to be averred in respect it is onely voidable otherwise of Lessee for life for that it shall be void by his death 6. The pleading that Sir James Hales was possessed of two Leases at the time of his death and the Office found that he had two without saying at the time of his death sufficeth reddendo singula singulis 7. Lessee for years to commence at Michaelmas brings Trespass before the Defendant gives colour by the Lease this is not good yet the Plaintiff shall not recover because he had no Title Southcot and Puttrel Serjeants for the Plaintiff He that striketh another after this wound given giveth his goods to another before the death the gift is good So a Constable 11. H. 4.12 which arrests him permits him to escape before the death of the other is not a Felon the finding by the Coroner of his death in this case countervails an Attainder indeed because after his death he cannot be Attainted and he himself is the cause he cannot A Felon of himself cannot make a Testament or Executor nor forfeit any thing but that which ought to come to his Executor Instant is the end of one time and the Commencement of another in Instant is priority of time in consideration of Law Husband and Wife Joynt-Tenants of a Lease for years there is no Moities between them but every one of them hath the whole and if the Husband charge the land she after his death shall avoid it because remitted to the Term and in by Title Paramount to the Grant 7. H. 6.1 So 18. E. 4.5 Tenant in Tail gives Trees growing and dies before they are cut down the Donee shall not cut them because the Issue and Wife are in by Title Paramount the gift by Southcot So 14. H. 4.32 and Fitzh nat br fol. 14.143 The Lord shall take his Ward which is an Apprentice out of the possession of his Master for that his
shall not have it from him because once attached in him as the Kings Villain and his wife are Joynt-Tenants for years the Villain dies his wife hath the Lease by Survivor this found by office takes away the interest of the wife as the entry of the King should in the life of the Villain and upon Cesser thereof the Kings Title once vested is not taken away because Nullum tempus occurit Regi by Dier by Weston where Titles of the King and of others concur in one instant the King shall be preferred as Land discends to a villain his Lord enters after this found the Ideot of the King shall have the Land and laches of entry shall not prejudice the King yet both Titles at once in the Lord because born Villain to the King because born Ideot by relation of office to it So if the husband be intituled to be Tenant by the courtesie and his wife after this found Ideot this takes away the Title from the Husband for ever for the Heir shall be in ward therefore if holden of the King or shall have it out of the Kings hands if not holden because the Title of the King to the Free-hold of the Land by the custody of it during the life of the wife shall take away by relation of the Office the Title of the husband which before the Office was found was vested in the husband Fish against Brocket TEnant in Tail Levies a Fine with Proclamations M. 4. 5. El. in the K. Beâ—ch Error whereof the one was recorded to be made the seventh day of June which day was Sunday and dies the issue brings Error and Reverses all the Proclamations but the Fine remains good at the Common Law and shall be a Discontinuance adiudged and this Proclamation could not be made as it is Recorded because it is no day in Court and the Fine and Proclamations are several Records and might have been avoided by Plea Sir Iohn Ratcliffs Case IF an Infant be made Knight in the life of his Ancestor P. 6. El. in the C. of Wards and the Ancestor dies he shall not be in Ward for his body for by this degree he is admitted to be able to do Knights Service and the wardship is due in respect of imbecility to do it he shall not pay the value of his marriage but his land shall be in Ward by the Statute of Magna Charta c. 4. so if he be made Knight being in Ward or before the same Law is if he be made Knight when he is in Ward 2. E. 6. Brook Gard 42. and 72. at the Common Law an Infant made Knight shall be out of Wardship for land and body Say against Smith and Fuller LEase for 10. years by indenture from Michaelmas last past the Lessee Grants P. 6. El. in C. P. Repleviâ— That he will pay 1000. Tiles to the Lessor or a summ in gross at the end of the Term the Lessor grants That if the Lessee pays the said 1000. Tiles at the end of every 10. years from thenceforth next ensuing That then he shall have a perpetual Demise and Grant of the premisses from ten years to ten years continually and inconsequently beyond the memory of man and adjudged good except onely for the first ten years for the incertainty of the begining continuance and ending of the other ten years For the second ten years begins not until the condition which is precedent to it be performed for this cannot ever be performed for all the ten years that ever shall be precedes the payment and the payment precedes the Lease and so the Condition impossible Also he cannot pay the same Tiles that he hath paid at first Also the payment at a day after the Term ends is good because that the Lease Commences from M. and so M. day is not part of the Term. Every contract to make good a Lease for years ought to have certainty of begining continuance and ending of the Term all which ought to be known at the begining of the Lease and if any of them fails it is not a good Lease because it wants certainty by Brown a Lease Conditional is good untill the Condition broken because the Estate precedes and the Condition is subsequent A condition to have a Lease gains not the thing until it be performed as the needle precedes the threads as he ought to marry my daughter before the time limited otherwise he shall not have the 100. l. which I promised So 7. E. 3.308 before fol. 25. if he will hold over eight years to him and his Heirs shall pay twenty pounds yearly Debt lyeth for the Lessor for the Rent within eight years because the Lessee hath but a Term for the Condition precedes the Fee-simple by Litl fol. 81. Lessee for five years upon Condition That if he doth such a thing within two years he shall have Fee but no law by Dier because he hath not Fee until the Act done Referrence to time certain is as much as express nomination of the time contained in the reference as a Lease for ten years and so from ten to ten during an hundred years a good Lease for an hundred years 29. H. 8. So I make a Lease until I. S. shall be imprisoned by the Statute of W. 1. cap. 20. So I make a Lease for years rendring 5. l. yearly and after I grant the Rent and Reversion to B. until he hath received of the Rent 20. l. it is all one as if I had granted the Reversion for 4 years because he shall receive 20. l. in 4. years and so the referrence contains such certainty from the time of the Lease certainly limited for the number of years may commence or determine upon incertainty very well as a Lease for 20. years after that the Lessee shall do such an Act good So for 20. years if the Coverture between I. S. and his wife so long continue good So 4. E 6 before fol. 6. and 13. 14 H. 8 11. A Lease for so many years as I. S. shall name and he names so many years in my life good for so many years that my Executor shall name not because he cannot name in my life and so it is not a Lease in my life and the certainty ought to be known in my life But a lease untill I. S. who hath Execution of a Statute Merchant until he is satisfied thereof no good Lease because Terminus contains certainty and there it is uncertain how long the Lease will endure So a Lease for three years and so from three years to three years during the life of I. S. is good for six years onely because those onely certain and the end of the number of years intended ought to be known at the begining So a person Leases for five years and so from 5. years to 5. years during his life is good for 10. years onely yet he continues person above ten years Dier said That he knew it Adjudged
Purview And therefore Stowell if he is bound by the Purview he is afterwards excepted and if he is not bound by the Purview he needs not to be excepted and so he is at large and out of the body of the Act which consists of the Purview and of the Exception Acts of Parliament are positive Laws consisting of Letter and sence which together make the Law And the Common Law is ancient to all positive Laws and this is to be considered to come to the sence of the positive Law viz. to put such sence to the Letter which excludes all mischiefes and inconvenience Those which Levie Fines are Parties their Heirs are Privies because there is privity of blood between them strangers are they which are not Parties to the Fine nor privies And the Fine excludes now Privies by 4. H. 7. before not Parties here and therefore it is no Mystery that the Letter of the Act will extend to them no Laches untill all the time is past Because they have Election to protract time untill the last of the five years or last day so that they within five years pursue intends Heirs also of those of full age for such sence stands best with equity reason which most avoids rigor and mischief Things within the Letter and yet out of the sence and intent of Statutes as 36. E. 3. and 4. H. 7.7 Doctor and Student 148. An Infant named a Disseisor vouched a Record and failed he shall not be imprisoned Notwithstanding W. â— ca. 25. Nor an Infant Baily or Receiver found in arâ—…rage of account shal not be committed to the next Gaol Notwithstanding W. 2. ca. 11. Nor an Infant which is convict of Ravishment of another Ward shal not be imprisoned for the Kings Fine notwithstanding Merton Cap. 6. Not if a woman Infant be Ravished and consent to the Ravisher within twelve years there the Heir shall not enter notstanding R. 2. ca. 6. But Infants are bound by Laches for a Title favoured for the Inheritance as Doctor and Student 148. An Infant shall be bound by Cessavit or Waste because an injury done by his Act and he shall purchase and the Law will presume if he hath policy to get a thing that he hath reason to defend himself So if an Infant Lord enter not for Mortmain within the year or before a Villain hath sold because he had but Title to the thing that it was never in him But Doctor and Student 29. and 27. Assises 32. Laches of Entry upon Discent or Warranty binds not an Infant because they have favour for Inheritance for Waife Stray Wreck or for Goods taken from them and offered to Images or taken by Enemies and not retaken before the Sun sets or sold in a Market Overt or Acts an Infant as Executor 35. E. 3.45 or as King before 213 or for necessity as an Obligation for meat and drink Doctor and Student 104. The Common Law is the foundation of this Act of 4. H. 7. and if the Father dies within a year after the Fine his Heir Infant is at large fol. 372. otherwise the imperfections which may happen sometimes within five years are to be considered as those which are at the time of the Fine or right then And because that the Statute provides for the Infant in the exception and in the Fine it will not be amiss in the middest And if one which hath a future right dies within five years his Heir within age shall have five à fortiori he which hath a present right as here because it is of greater estimation then a future If a stranger to a Fine cometh of Non-sane memory or is in prison the third year after Proclamations made and after the five years cometh of Sane memory or out of prison he shall not be concluded because constrained and acts involuntary but if he or she taketh Husband or go beyond Sea in the third year and after five years is discovert or within the Land he shall be bound because Acts voluntary An Expounder which adheres only to the Letter of the Statute of 4. H. 7. without adding reasonable sence will admit many absurdities as by the Letter of the Statute if an Infant which hath present right is excepted dies within age his Unkle being his Heir and of full age shall be barred So if an Infant by Entry within age avoyd the Fine after full age permit the Conusee to be for five years in possession without Claim he shall be barred by the Letter which saith that he shall take Action or Entry within five years after full age So an Infant being Diseisee in his Mothers belly when the Fine was Levied is not accepted by the Letter of the Act because his age is accounted from the time of his birth by intent of the Act here for every thing which is within the intent of the makers of the Act although that it be not within the Letter and intent also and of those exceptions the Letter binds none to five years after full age which were within age when the Fine was Levied and ingrossed and many years may be between the one and the other yet he that is born after the Fine levied and is within age when it is ingrossed goeth not at large but is bound to five years after full age as well as he which was born an Infant when the Fine was levied and ingrossed And if the Disseisee at full age when the Fine is levied die before the Proclamations his Heir within age then and when all the years pass is bound by the Letter because the Letter excepts him which hath right when the Fine is levied But the intent of the Exception intended to except those which had â—ight and are Infants when the five years commence so it shall be if the Disseisee cometh of Non-sane Memory or in prison before the Proclamations and after five years he cometh to sane-Memory or forth of Prison he shall have five years after this by the intent of the Exception Two Joint-Tenants Disseises the one within age the Disseisor levies a Fine four years passe after the Proclamations he of full age dies the Infant shall have other five years after his full age for all by Bendlos and severall five years shall be for severall Titles As A. disseiseth a woman sole taketh her to wife and have Issue A. is disseised and dies after a Fine levied by the Disseisor and before the Proclamations the Issue being of full age after the Mother dies the fifth year passe the Issue is bound as Heir to his Father because in this respect he hath but five years together But as Heir to the Mother he shall have five years to be accounted from the death of the Father for notwithstanding it is the self-same Land he hath severall rights the one the last as Heir to his Father and th' other the first right as Heir to his Mother And in respect of them hath severall times
Ouster during the coverture because by this he continues all his estate but that part of the State taken from him by the disseisin by the Eiectione Firme And the stranger may have Eiectione Firme for his Moity as two oyntenants for life and to the heires of one of them looses by default the one shall have right and the other a Quod ci deforceat and the Moity of the terme is not suspended for then it shall not survive Parson Patron and Ordinary make a Lease for yeares of gleeb-Gleeb-land the Parson dyes the Lessee is made Parson and dyes his Executors shall not have the residue of the terme because the terme was extinct by the freehold of the Land which the Parson had in him because both in his owne right and to his owne use yet in severall capacities But by Dier it shall not be extinct because he hath the terme in his owne right and in Capacity of his naturall body and the Inheritance as Parson which is another Capacity But where the Lessor hath the terme of yeares as Executor to the Lessee it is not extinct but the terme when the Lessor dyes shall be revived Bracebridge against Clouse A Man seized in Fee of a Mannor maketh a Lease of forty Acres parcell of the Mannor for forty yeares if the Lessee shall live so long and after by Poll makes a Lease of the sayd forty Acres to J. S. for seventy yeares J. S. grants his terme to the Wife of the Lessor and a stranger the Husband makes a Feoffment in fee by Indenture of the Mannor and moreover grants by it all his other Lands and Tenements in the same Village to the Feoffee and his heires and this Feoffment was to the use of the Feoffor and his heires and dyed his Wife dies the first Lessee for yeares dyed within the forty yeares the stranger entred into the whole forty Acres and upon an Ouster by the heire of the Lessor brought E. Firme And adjudged that he shall recover for his owne moity and shall be barred for the moity of the Wife 1. That the Lease for seventy yeares is good for so many years which are to come of it after the death of the first Lessee yet is without Deed for that the Lessor in respect of his Reversion in fee may contract with another for any estate to be derived out of the Reversion and shall take effect then and not stay untill the forty yeares are extinct be effluction of time for the Condition if he shall live so long is a limitation which determines the estate otherwise it is of a Collaterall Condition for although that the terme be finished by it or by surrender or forfeiture the second terme shall not commence untill the terme be incurred for that hee had not power to contract for the possession during the first terme in respect of any such possibility of the breach of Condition surrender forfeiture c. As upon a Lease for life for the incertainty of the determination of the estate by his death and for the possibility which was at the time of the Contract that the Lease shall be executed before the death of Tenant for life by his surrender forfeiture c. As the Lessor maketh a Lease for life and after maketh a Lease to another for one and twenty yeares to commence presently Tenant for life dyes or surrenders the second Lease shall commence presently But if one make a Lease for forty yeares by word defeasible upon Condition to be performed by the Lessor and incontinently makes a new Lease for forty yeares by word this is void yet the first Lease is avoided by performance of the Condition or is surrendered because there is no possibility that it will be executed in respect of the Collaterall Condition But if the second Lease be by Indenture it is good by Estoppell And if it be by Deed Poll with Attornement the Reversion will passe 2. By the first Lease of forty yeares the forty Acres were severed from the Mannor for a time for that the Lease was executed by entry but the Reversion and Francktenement is parcell of the Mannor but the Lease for seventy yeares not nor may be executed by entry during the first Lease but is executory after this determined then of this Lease for seventy yeares the Lessor hath not any Reversion then this is not severed from the Mannor but continues parcell of it because it is executory and not executed by entry and then when the Lessor maketh a Feoffment of the Mannor the Reversion which depends upon the Lease for forty yeares passe as parcell of the Mannor which Reversion may be parcell of a thing in possession But not contrary discharge the moity of the terme for seventy yeares which is extinct by the Livery that gave the possession otherwise it were if the terme had beene executed at the time of the Livery except the Husband made Livery in this Land leased for the Land is severed by the Lease and here the execution of the possession to the use in an instant shall not revive the terme which was extinct before by the Livery Lessee for yeares before entry hath not possession so that a Release to him before entry is not good but he hath onely an Interest and right which is grantable or forfeitable before entry the Lessor shall not have Rent untill he hath waved the possession or the Lessee enters because presently the Lessor is adjudged occupier 28. H. 8.14 3. The grant of all his Lands and Tenements shall passe the terme because it is his Land for the time and for that hee had not any other Land there or otherwise the words would be void and therefore the opinion of Brook was denyed to be Law 7. E. 6. which is contrary but if he had other Lands there then it may be that the terme will not passe 4. He had Judgement for one Moity and was barred for the other where he demanded the whole which is not good bâ— Plowden but should have been barred for all if exception had been taken to it for that he might have had a better Writ for the Moity Vernon against Manners CHallenge of the Array because the Sheriffe which made it is Cosen to the Tenant in the ninth degree M. 14. 15. El. in the Kings Bench. Adjudged good he can shew how he is Cosen 21. E. 4.75 And notwithstanding the Tenant be seized in right of his Wife to whom the Sheriffe is not inheritable for by reason of Cosenage it shall be intended favourable and although that he cannot inherite the Land demanded yet he may inherite other Land as he ire to the Tenant Smith against Stapleton LEase for life to Husband and Wife P. 15. El. in the Kings Bench. Replevin Remainder in tayle to N. T. their Son a stranger levies a Fine Sur Conusans de droit come ceo que il ad de son done aâ— N.T. the Son which grants and renders the
incorporate Masters and the Indenture is Master And in the Indenture foure are named and their Charter Warrants but two Masters Also the Charter is Masters or Governors and the Indenture Masters and Guardians So it varies in Guardians for Governors and in et for or and the words Craft and mystery are surplusage and therefore void words and do not prejudice the Deed but for the other variance the Deed was adjudged void And therefore the bargainee by his entry is a disseisor 2. The Fine with Proclamations and five yeares barres this Corporation and all other Corporations as Major and Communalty Deane and Chapter Colledges c. Which have absolute Estates in their owne right and their Successors for ever by equity of the Statute of 4. H. 7. Notwithstanding that the Statute speakes onely of Men and their Heires for that this Statute is taken largely for possessions of Lands by the Fine and strictly against the ancient right if they be remisse in their claime for five yeares and the Act ought to remedy all the mischief otherwise it is of Corporations which have not any absolute Estate without others as Bishop Deane Parson Vicar and Prebendary c. But every one of them shall be barred by Nonclaim by five years and every Successor shall have new five years So every Officer who hath Land appertaining to his Office as a Parker Forrester Keeper of a Gaole c. shall be barred of Nonclaime after a Fine levied by his disseisor and five year past after Proclamations his Successor not if he doe not also permit 5. yeares Passe in his time 3. A Corporation cannot be seised to another use but onely a Naturall body because they are not imprisonable to be compelled to perform the confidence and a body Naturall shall not be imprisoned for the offence of their body Corporate which is another body 4. A bargain and sale without words Heires shall give a Fee simple But upon those two Points the Court was not resolved because that the other two made an end of the Case An authority given by a Corporation to enter into Land and claime it to their use and after to make a Lease of it in their name is good fol. 535. b. Paramor against Yardley A Termer devises all his Terme to his Sonne H. 21. El. in the Kingâ— Bench. Trespasse and besides saith that his will and intent was that his Wife should have the Occupation and Profits of the Land during the Minority of his Sonne to the intent that she with the Profits of it shall educate his children and see his Will performed and made his Wife his Executrix and dies the Wife proves the Testament and educates his Infants accordingly after sells the Terme to one to whom the Testator was indebted having then sufficient of the Goods and Chattells of the Testator to pay all his debts besides the said Lease and after she dies the Sonne at his full age enters and his Entry was adjudged lawfull and his grant to the Plaintiffe good 1. Because that the devise to the Wife is good during the Minority of the Sonne and by the exposition of the Court shall be intended to precede the devise to the Sonne in sense and intent and the devise to the Sonne to succeed 540 5â—…1 a. 2. For that the devise of the Profits and Occupation of the Land is a devise of the Land it self for that is the benefit and fruit of the Land otherwise it is of the use of a Chattell personall as of a Looking-glasse Mappe Globe or Booke for there the use is a distinct thing from the property fol. 541. b. and 541. a. 3. For that the Terme shall be executed in the Wife as a Legacy certain untill she disagrees to it because it is more for her benefit and she may not have an occasion against her self as another may otherwise it is of a Legacy certain 1. The Common Law to make the intent of the Parties take effect puts order to words contained in deeds without order as the Releafe of the Disseisor and Disseisee to the Lessâ—e for yeares of the Disseisor shall be first or the Disseisor and after the Disseisee otherwise it wonteth previty between him and the Lessee So Tenant for life Houses for yeares and he and him in Reversion consâ—…mes the Estate of Lessee for yeares habendum in Fee The Law adjudgeth the Estate of the Tenant first to passe for to make previtie upon which Release that of him in the Reversion may enure to enlarge the Estate So a Termor for thirty yeares and his Lessee in Possession for ten yeares by himselfe may not surrender for want of previty And therefore his surrender shall be taken to succeed the other Land is devised to one in Fee after a Rent out of it to another in Fee good So fol. 523. because it shall be taken first devised although it be subsequent in words As the Will repeales the first so the last part of the Will repeales to the first part of the Will which is contrary to it because he had such Intent last As a devise of Land to one in Fee in the premises and in the end of the Will to another in Fee But here is not any such contrariety 2. By grant of the Lease land passeth during the Terme because the Lease contains the Land it selfe and time in it words equivalent to words usuall shall have the sense and force of words usuall as 5. H. 7.1 Licence to enter and occupy Land for one moneth is a Lease and so shall be pleaded So that Land shall return redibit or discend or to a stranger after the death of Tenant for life shall be pleaded as a Remainder So a grant of the nomination of the Advowson is in substence a grant of the Advowson because the profit of it rests in the Nomination So here words of Nomination and Profits of the Lease is as much as the Lease it selfe for the time and not of distinct Profits to take also because the Executor here hath not remedy at the Common Law for the Profits if she be ousted of it and for this Legacy she hath no remedy in the Spirituall Court because she cannot sue her selfe there also the Estate it selfe of the Terme shall be in the Wife because the Sonne shall not have it untill fuâ—l age and then might drown his Profit if she hath but profit to loose 3. Alteration made by Operation of Law where the Party hath not any against whom to bring in his action which is equivalent to a Suite and Execution given to a Stranger as of a Remitter So a Debtor of twenty pound is made Executor he may pay himselfe by way of Retainer and hath property in the debt it selfe presently because he cannot sue himselfe and the Law giveth to him the like advantage as a Suite should be which performes the charge of the thing thereby he claimes the commodity annexed to the charge as to keep
Court of a Steward is a disseisen of his Fee For the doing of matter of labour is a claime of the Commodity for his paines So an Executor which hath a Terme devised to him upon Condition that he pay 10 l. to a Stranger payes the 10 l. this is consent and execution of the Legacy So the educating of the Children here determines her Election that she taketh the Terme as a Legacy and her grant after reproves it not but argues her inconstancy If a Termer be indebted to one in a hundred pounds and maketh his Will and by it devise his Terme to his Sonne and leaves assets to pay the debt the Executor cannot sell the Terme to pay the debt but shall pay it with the assets that he hath in his hands Adjudged because he ought to perform all the Will scilicet Debts and Legacies if there are assets If the Executor disagree in Deed to a Legacy certain this shall be presently in the second Devisee of this bequest of a thing incertain to the Executor as of 20 l. and the Testator oweth 40 l. and dies having Plate Oxen Horses of every of them to the value of 20 l. this is not executed untill 40 l. paid for he may Alien which of them he will and the others have no remedy if there be no more assetts and may pay and carve to himself before any other as it is in 12. H. 4.21 because he is neerest to himself And therefore the Execution of the Terme devised here shall not be hindered by the not payment of the Legacies to others nor Lease given to his Executor ought to be sold and then in Legacies it is reason that Executor shall have preferment A gift to his Executor of all his goods for performance of his Will is no devise and a void gift because the Law giveth them without these words As if a Man devise in Fee his Land to his Son and Heire it is voyd because he shall have it without the devise by discent So for to prescribe for to distrain for Rent service voyd because he may distrain without prescription A devise of Fee tayle to his Heire is good because it is another Estate then he should have by discent So here the Estate devised to the Wife which is but percell of the Estate scilicet during the Nonage of the Heire is good because severed from that which the Law would have given to him and the Clause for educating his Children is not a thing Testamentory nor Legecy to the Children but is an intent annexed to the devise made to the Wife by which she by her entry hath the Estate devised to her as Legatory And the Execution to the Wife is also to the Son because a devise although the Estates are severall and is of the same effect as if her Estate had bin devised to another with the Remainder to her Son and agreement or assent shall not be apportioned as attornment by Tenant for life to the Grantee of the Reversion for life extends to him in Remainder So notice given by Tenant for life to the Lord shall serve to him in Remainder in Fee to compell the Lord to avow upon him after the death of the Tenant for life So Rent accepted by an Infant at full age of his Lessee for yeares hath made good the Remiander over An Intruder cannot gain such Possession against the King upon which he may maintain an Action of Trespasse because the King may punish him 19. E. 4.2 and be shall not be doubly punished but against the Lessee of the King one may gain such Possession that he may punish a Stranger trespassor yet he shall not gain no Estate from the Crowne for the Freehold which irremoveablely rests in the Crowne And the King shall not alleadge Intrusion with a continuando but divers dayes vicibus because he gaineth not any Possession by wrong scilicet by the Intiusion against the King Walsinghams Case H. 15. El. in the Excheq Intrusion TEnant in tayle of the Kings gift maketh a Feoffurent in fee to a stranger and after is attainted of Treason and executed having issue and after this attainder is confirmed by Parliament with severall rights and interests of Strangers And it was adjudged that the Feoffee continuing his estate by the Feoffment after the attainder shall be an Intruder and this Judgement was afterwards affirmed in a Writ of Error brought in the Exchequr Chamber But the contrary was adjudged in the Common Pleas 17. El. between Conway and Moulton that tenant in tayl shall not forfeit any thing First That the Feoffment of tenant in tayl had not discontinued nor devested the estate of fee in Reversion out of the King because it is but a matter in Deed which is tortious otherwise it is of a rightfull matter of Record as a Recovery upon a good title or rightfull matter in Deed as a Remitter or Condition performed As Alienee of tenant in tayle of the gist of a common person infeoffs the King by Deed inrolled which regives to the first tenant in tayle which dyes the issue euters it is a Remitter and therefore the Reversion in fee is devested out of the King and restored to the first doner because a former right matter in Deed and in Law concurr together So Lessee for life to have fee if he doth such an act after the Lessor grants by Deed inrolled the Reversion to the King the Lessee for life performes the Condition which is older then the title of the King this older title matter in Deed and operation in Law thereupon shall take the Reversion out of the King without other Suit or Circumstance because bound with the Condition and the fee simple ought to vest in him at the same instant that he performes the Condition or never But no tortious act as Disseisen Intrusion c. may take the Reversion out of the King Secondly That by the Feoffment he hath not given the fee determinable because he had it not nor an estate for life of the Feoffee but onely an estate for his owne life and so the Reversion in tayle continues in him which shall be forfeit by the Attainder and by consequence the estate of the Feoffee determines by the death of the Feoffor but the Feoffee hath an estate for the life of the Feoffor discendable and his heire shall be a speciall occupant of this estate in base fee simple Thirdly That the King shall have the estate tayle in point of Reverter for that he had the pure fee before and two fees of one thing cannot be together in one person otherwise in severall persons and then the King shall have the Land discharged of the estate tayle and by consequence of all estates charges and incumbrances derived out of it as Leases warranted by the Statute and then the laving in the Statute for a thing before determined is void as of a Lease voidable made by such tenant in tayle which the issue hath made good by the acceptance of the rent and after of the estate tayle Escheated for Treason or is determined for default of issue So that the King hath in point of Reverter there the Release shall be void and he hath nothing by the saving of the Statute Adjudged in Austins Case otherwise it is when the King hath it in point of forfeiture as if the Reversion be to a stranger fol. 559. b. What Livery and Seisen is and the validity of it fol. 554. a. Estate tayle shall not be in abeyance nor any thing which another cannot have for abeyance is onely for the benefit of a stranger because it cannot vest immediately 556. a. 562. a. Estates in fee are three First Pure fee Secondly Fee determinable thirdly Base fee which shall be in one when the pure fee is in another fol. 557. a. An estate tayle shall not be to anothers use fol. 555. a. yet if tenant in tayle bargain and sels the Land by Deed inrolled the Bargainee shall have see executed by the Statute of 27. H. 8. which cannot be except the use shall be raised first out of the estate taile and so the estate tayle shall be to another use fol. 557. b. A Disseisor or Intruder upon the possession of tenant in tayle of the Kings gift gaines not except the estate for life of tenant in tayle and therefore if he dye seised the issue in tayle shall enter upon this discent as I beleeve fol. 558. a. The Father maketh a Lease for life to his Son the Remainder for life to her which shall be his Wife at the time of his death this is a good Remainder and shall be in abeyance untill the Wife be knowne fol. 562. a. Saving in a Statute contrary to the Explanation is voide Puton and Hides Case and Austins Case of a Lease and the Duke of Norfolks Case fol. 564. a. The possession shall be awarded upon a Bill of Intrusion which is but Trespas in its nature 561. a. Tenant in tayle grants his estate there waste is dispunishable during the life of tenant in tayle because it is not but onely a priviledge annexed to it Estates passe to the Grantee and amount to words of dispunishable of waste and not because he hath a greater estate then for the life of tenant in tayle So 42. H. 3.21 waste dispunishable in tenant for life because the Lestor released all his right that he had in the same Land and that he or his heires would not demand any right in the same nor claime nor challenge for the terme of the life of the tenant for that it amounts unto a Lease without impeachmeat of waste fol. 556. A Writ of Error abated by the death of the Lord Chancellour because his Christian name and Sir-name and Keeper of the great Seale were put into the Writ fol. 564. b. FINIS
thereof he entred this is a departure from the Bar for it is a new matter For the same reason a special agreement in evidence shall not maintain the general issue one witness is not enough nor one Juror for to try an issue if more were warned by the Sheriff 8. E. 3.50 So here the Defendant had but one witness which proves for him which is not sufficient and so judgement shall be given for the King Atkins for the Defendant A witness produced to prove a thing if he saith That he knoweth nothing of the matter his deposition is void so if he depose negatively as to say no more was not entred then so much and if no witness the knowing of the Jurors aid not the tryal of the matter and a Verdict given contrary to the testimony of witnesses good It is not needfull to aver that which of necessity must be intended as that the King hath a Beam there special agreement is an agreement as a Feoffment upon condition is a Feoffment and so this word Agreement includes every agreement by which the evidence well maintains the issue The Statute speaks not of surety and peradventure intends it not and therefore in vain to speak of it and therefore it may be he hath not answered to this exception Agreement in our Law is threefold viz. Executed at the beginning of it with payment intended by the Statute of 25. E. 3. cap. 3. which saith That goods bought by fore-stallers are forfeited to the King if the buyer had made agreement with the seller such agreement is not meant in our case because then the Statute should not be intended in the disjunctive for then the first and the second clause should be all one but the word Or disjoyns the clauses Agreement to an act made by another as in 20. E. 4.9 To a disseisin to his use maketh him a disseisor from the beginning so the party ravished to agree to the ravisher is an agreement executed here because nothing is to be done afterwards and agreement here may not be an executory agreement because the performance shall be afterwards yet both parties accord at one time before 26. H. 8. cap. 3. intends such because it speaks of payment or agreement for first fruits c. and common usage to pay after upon obligation made before proves this which intends agreement executory and here agreement is intended executory because it is not the first nor the second and an agreement executory is Duplex the one certain at the beginning as this of first fruits the other by matter ex post facto upon certainty to be known as here and such agreement executory the Statute will warrant for no Law will punish him in whom there is no default and where he cannot prevent the mischance by no possibility for the necessity of the matter and for that inevitable chance shall not prejudice any 20. H. 7.11 Fineus A man by the Common Law may kill another in his own defence or as a champion for the necessary safeguard of his life and the Tryal of right so notwithstanding the custom of the Realm new Natura brevium 94. b. If enemies of the King steal of Guests the Hoastler is discharged because he cannot resist So if the ship were on fire the casting of the goods on the land without payment or agreement for the Subsidie shall excuse the Defendant so here the extremity of the Tempest doth excuse the vigor of the Statute Sanders the Kings Serjeant Notwitstanding that an agreement conditional is included in the words of the Statute viz. The Collector not agreed with yet every Statute although it be penal shall be taken as the makers intended for the Statute of Waste is If any make waste in Lands which he holdeth by Demise c. yet if his Estate be Ex ligatione it shall be punishable in waste and yet the Statute gives Ex demissione onely suo de assignat and so it is holden 10. H. 6.3 But Gloucester cap. 5. W. cap. 14. nor Martebridge cap. 13. speaks nothing de demissione So quia emptores terrarum viz. W. 3. speaks secundum quantitatem terrae intend valore So 4. E. 4.12 An information for shipping Wooll without sureties of the carrying of Bullion according to the 14. E. 3. the last chapter holden good because the finding of sureties is not repealed by the general words of 36. of E. 3. cap. 11. which giveth the old custom of half a Mark for every sack after three years nor of 45. E. 3. cap. 4. which imposeth no charge upon Wooll other then Custom and Subsidie granted to the King and without assent of Parliament and the two last Staâ—intend not for to discharge Bullion but great Subsidies upon Wooll after 3. years so that the mind intent of the makers shall expound the general and doubtfull words of Star and abridge the generalty of them so here it shall be intended an agreement certain Also because the Commons pray the King That he will be pleased to accept of their Grant for that the words of the Statute which is their Grant shall be taken more beneficial for the King and most strong against the Grantors according to the Principle of the Common Law in case of a common person So the Statute of Prerogativa Regis 17. Ed. 2. Rastal wards 13. is the Grant of the Commons to the King which saith The King shall have the custody of all the Lands of such which hold of him by Knights service in Capite whereof the Tenants were seized in their Demeasne as of Fee at the day of their death of whomsoever they hold also by like Knights Service and notwithstanding that Fee is commonly taken to be Fee-Simple yet the King shall have of Tail because it shall be construed most strongly for the K. where it hath two intendments Agreements upon which the Common Law giveth no remedy are void and not good as in 19. H. 6.36 Upon an information for the forging of false Deeds the Defendant pleads Arbitrement made viz. That the Plaintiff shall not farther prosecute his Writ against the Defendant and saith also That the Defendant shall be non-suited in the Assize This is no Plea because non-suited founds not in satisfaction and cannot compell him to be non-suited for the award is not good if it be not executed wholly or the thing awarded may be recovered by action and therefore in 6. H. 7.10 In Trespass to say That he hath paid money but he hath not made his windows which the Heir may compel him to do for the concord is intire but wants execution in all and indeed before action brought is not good then it is performed yet not immediately and therefore it was held no Plea So in 27. ass pl. 5. A Baily known pledge the Ox of his Master for Wheat and if he pays not c. he shall keep the Ox alwaies This shall bind the Master because the wheat cometh to his use otherwise
day of the entry for a Bar good to a Common intent is not good because parcel of the Substance is left out and because Durante termino is for all the Term for that the time which is parcel of the Substance of the Bar ought to be shewed as the Obligee infeoffees fee another before M. he must shew in certain what day he did infeoff him So 3. H. 7.3 the Lord which Leaseth within the year entred for Mortmain for otherwise it shall not be intended for to enter within the year if he doth not set it forth but the Bar is good where such things are limited because that by special and not by general intendment they are omitted as a Feoffment in Bar is good to a Common intent yet it may be That the Feoffor was within age or in prison but such special things shall not be intended by the Law but shall be shewed As to the matter there are principally two things upon which Arguments may be made viz. Maxims and Reasons the Mother of all Laws and the Maxims are the Foundations of the Law and Conclusions of Reason and therefore are holden as firm Principles and Authorities of themselves One is a Remainder shal not be limitted except it be to a person capable at the time as to a Monk profest which afterwards is deraigned after this the Tenant for life dies the Lessee for life shal not have the remainder because he was not a person able at the time of the remainder limited to take it so a remainder to him That the particular Tenants shall name and after he nameth one yet the Remainder is void for the cause aforesaid But 32. H. 6. if the remainder is limited to the right Heirs of Jo. S. who is living and he die before the particular Tenant is good because I. S. shall be intended then dead also because by all presumption and intendment of Law I. S. may have an Heir which the Law will appoint in despight and so will be certain and therefore the Remainder good but shall not be good where it stands indifferent if he to whom the Remainder is limited will be a person able or not Another Maxim is That a Remainder may pass out of the Lessor at the time of the Livery for that Richel saith in Litl 162. the Remainder is void for this cause amongst others so here it passeth not by the first Livery because a Condition precedes the Commencement of the Remainder viz. if W. die living the Husband and Wife then the remainder to the Defendant and so passeth not at the first Livery and therefore void Brook Serjeant to the contrary As to the uncertainty of the time of the Entry the Bar shall be intended the better for the Defendant which is That he entred immediately and the Bar sufficeth which is good to a Common intent And therefore about 20. E. 3. it is holden That if one plead in Bar That one I. S. died seised and R. S. entred as Son and Heir to him whose Estate he hath this shall make the Bar good and yet it may be that he was not Heir for it is not expresly said That he is Son and Heir but that he Entred as Son and Heir and yet in as much as it is pleaded by way of Bar the best shall be intended for the Defendant so here And he argued besides much in effect as Cook did Sanders Serjeant for the Defendant The Bar is good to a Common intent and the best shall be intended for him which pleads it for a Plea in Bar is alwaies made for two causes The one to enforce the Plaintiff to make his replication The other is to compel him to joyn Issue which cannot be joyned upon the replication as it may upon the Bar and then the certainty shall be in it and not of necessity in the Bar and therefore the Bar good if it be good to a Common intent As in Assise the Tenant pleads in Bar a discent to the Plaintiff and to two others and that he hath the state of one and it is a good Plea because it is intended lawfully yet he may have it by Disseisen and then he is a Disseisor to the Plaintiff also for he cannot be a Disseisor to one except he be so to the other So 27. ass 31. in an Assise by the Heir the Tenant saith That the Father of the Plaintiff being Tenant by the courtesie and now in life Leased his Estate to his Father which died and he is in as Son and Heir Judgement if Assise and held a good Bar yet he doth not say That he was the first which entred and yet good So 21. H. 6. 17. here fol. 26. as to the Remainder it shall be good because it is a principle that it shall be taken most strongly against him which made it and therefore in 31. H. 8. If a man gives to a man and to Heirs without his it is Fee yet he giveth not Fee expresly So 18. E. 3. 28. after 170. A good Remainder by word That after the Decease of Tenant for Life the Lands shall return to A. and B. in Fee So a Remainder to the right Heirs of I. S. in Life passeth presently and shall be in abeyance rather than void and that if shall be to the benefit of the Lessee against his own Livery and limitation as alwaies the Law interprets words strongest against the Speakers as in 40. E. 3. 5. 49. E. 3. 1. A Termor counts that he left this as good as he found it and the Wind blew down the House it is not waste but Covenant lies for the special Agreement alters the Law and maketh his words to be taken more strongly against him So the Law taketh the Acts aforesaid strongly against the Makers And therefore if I. give to B. Land upon Condition That if he Marry my Daughter he shall have Fee if he Marries her he shall have Fee for by the Livery it taketh Commencement and by the performance of the Condition it taketh perfection and in the mean time it is ambiguous So a Lease for years upon Condition That one moneth after he shall have Fee he shall have it after the moneth accordingly for the thing passes according to the Covenant most strong against the Donor So a Lease to two upon Condition That if the one die within seven years that then after the death of the other it shall remain to a stranger good and Privies and strangers are all one 24. and 32. he differs because he hath an Estate first given to which the Condition may be annexed and Livery and by imitation shall be taken strongest against him which makes it Three things one shall have by Remainder First he shall have a Remainder to vest Secondly a Possession in Law and Thirdly a Possession in Deed if he be capable at the time of the Possession in Law cast upon him it sufficeth 28. against it as 17. E. 3. 29. and
18. E. 3. 15. a gift to one and his first begotten Son and he hath no Son then but afterwards he hath is a good Remainder to his Son So 39. Assise Pla. 20. a gift to Husband and Wife and to one Heir of his body is a good Remainder yet no Heir to the gift if he be in being when the Possession in Law is cast upon him but a Remainder limited upon contrariety is not good fol. 24. according but the other cause that Litl assigns for that it vests not at the time of the Livery is no cause as is proved by the cases aforesaid because after the Alienation and gift it may not remain to another And the other cause that Litl alleadgeth is because it vests not at the time of Livery which is no cause So a gift to A. and his Heirs so long as B. shall have heirs of his body Remainder to C. in Fee is void for the contrariety because a Remainder cannot depend upon a Fee determinable So a Lease for life to A. upon Condition That if B. pay 20. l. to the Lessor that then immediately it shall remain to B. is void for the contrariety because A. ought to have it during his life But if it were to remain after the death of A. to B. then it were good because no contrariety there and here if W. dies living the Husband and Wife that then it shall remain to to the Defendant is not intendable immediately in their lives but that it should remain as it ought to remain viz. after their deaths and so there is no contrariety and therefore good As to the Condition which is subsequent if he would dwell there c. because it hath two intendments the one that he should inhabite there all the Term and the other to some time during his life shall be taken strictly and the more strongly against the Lessor viz. That he inhabites there at some times during his life which sufficeth as the Feoffee upon Condition for to pay 10. l. to the Feoffor and no time is limited he hath during his life So to serve him in such an Office and saith not how long he hath during his life Harris Serjeant to the same purpose And as to the Exceptions he said That a Condition subsequent and which goeth in the Defeasance of the Estate as here he that claims the Estate shall not shew it but the other which will defeat the Estate But where the Condition precedes the state he shall shew who shall have it because enabled thereunto as if I grant a Rent Charge upon Condition That he shall do such an Act there the Grantee shall avow for the rent without shewing the thing done because it is a condition subsequent and defeats his Estate But if I grant That if he doth such a thing that then he shall have the rent he shall not avow without performance shewed because he is enabled by this to the rent 14. H. 8. Wheeler Grants his Term to one upon Condition That he shall obtain the good will of the Lessor and then shall have it he shall not have it until he hath shewed the performance of the Condition and he affirms the remainder upon Condition to be good Hales Justice If he would c. is a Condition and that the Plea is insufficient because the Defendant hath not averred his continual residence after the Remainder happened for during the Term shall be intended all the Terms as it shall be in reservation of rent or Covenant to repair a house during the Term 27. H. 8. 19. by Audley so the Feoffees shall be intended all the Feoffees and if he hath a reasonable excuse he ought to shew it fo 272. viz. That he was 200. miles distant at the time of the Survivor of the Husband and Wife and entred so soon as he had notice which he shall shew in certain that the Justice may trie it as 22. E. 4. 27. Tenant for Life Leases for years and dies The Lessor bringeth Trespass against the Lessee who saith That in as short time as he could after that he had notice of the death of the Tenant for Life he chased his beasts forth of the land and said also that the Trespass was between the death of the Tenant for Life and the chasing out of the beasts and held no plea for by the death of Tenant for Life the Lease for years was determined and no man bound to give him notice and there it is holden that he ought to say That such a day he chased out the beasts and might shew that the Lessor died in another County and so he could not have so soon notice and this shall be tried by the Justice if the avoidance was in reasonable time So in this case the day of his Entry for the knowledge of the Jurors ought to be set forth common intent is that which hath more vehement presumption and intendment then any other intent hath as 3. H. 6. 3. before 26. fully administred all goods which were the Testators the day of his death good yet might have goods were not the Testators which are assets after the Debts paid but the most common intendment is That he had no other goods except those which were the Testators but intendment indifferent the more strong intendment the one way or the other and therefore ought to be pleaded in Bar as 13. H. 8. 15. by Willoughby the life of cestui que vie is pleaded in a Lease for another life which is indifferent if he be alive or not So if he pleads a release made after the Obligation it is not good if he shews it not by express words that it was delivered after it shall be intended that it was delivered when it bears Date But on the other part it shall be intended also That the other would not bring an Action if it were delivered after and therefore shall be shewed which intendment stands indifferent so here A Demurrer all times after the Remainder happens or not is incertain and therefore because he hath not shewed this the Plea is nought As to the matter in Law it seemeth to him that the remainder is good for a man may pass the thing in question when where and how he will if it be not against Law nor repugnant as here the limitation if the remainder is not against Law for the remainder need not pass forth of the Lessor so 29. for upon the Agreement first had by Act made afterwards Franck-Tenement or remainder may be transferred and devested from one vested in another as a Lease for life remainder for life upon condition That it shall be void if he doth not such an act the remainder before the Condition broken is in him when broken it commeth to the Lessor So a rent or Reversion passeth by Attornment not by the Grant presently So 1 H. 7.31 by Brian a remainder to the K. when the Deed is inrolled then it shall pass and relate
to the Livery So in the case of Plessington 6. R. 2. where the Condition was That if the Lessor die within the Term the Lessee shall have for life and there holden that his estate shall be enlarged if the Lessor die So Disseisen to the use of I. passeth not a Free hold of I. to I. without his agreement so here A remainder passeth when W. died not before by force of the words annexed to the Livery So by Litl a confirmation to the Husband and Wife Tenants for life passes the remainder to the Husband yet it passeth not at the time of the first Estate and the diversity where Fee upon Condition is appointed to privy and whereto a stranger is but a conceit which is worth nothing 29. according 24. to the contrary and is privity because it reserveth out of both so it shall bind him in remainder and also he in remainder shall have waste and so is privy to the particular Estate and the Lessor also and the words then which shall remain shall not be intended presently to destroy the particular Estate but shall remain as a remainder ought to divest then and is to be executed after their deaths as if Donee in Tail doth such an Act then to remain to his right heirs which vests when the Act is done and after the Tail ended shall be executed and not presently upon the Act done to avoid the Tail so here There is not any repugnancie or prejudice to any but a thing when it is done made in prejudice of another shall be void as a remainder that he shall have the land in the life of the particular Tenant So 21. E. 4.44 The King discharges an Abbot That he shall not be a Collector when any Titles should be granted by the Clergy of England and Canterbury Grants Tythes provided that the Collector returned by the Bishop shall not be discharged by the King and the Bishop returns the Abbot Collector there holden that the Grant by the Clergie in this point viz. to charge persons exempt is void because it is in prejudice of others And so the remainder here shall be void rather then a shranger shall have prejudice by it but for defaults in the pleading the Plaintiff ought to recover Hinde Justice to the 3. exception the death of the particular Tenant shall not be shewed which is onely conveyance of the execution of the remainder and is not Traversable nor Issuable To the first and Second exceptions he needs not shew his continual residence after the Remainder is fallen nor the day of his entry because it is a Condition subsequent and goes in defease of his Estate and he which hath benefit by it ought to shew it as 29. H. 6.22 the Grantee of an annuity pro concilio impendendo shall have the Annuity without shewing that he hath given Councel for that the shewing of it is not beneficial to him and the denial of Councel defeats the Annuity so he agrees to the diversity in case of Annuity 15. H. 7.1 bont fol. 25 by Pollard when one shall be promoted and therefore the shewing hereof that which is surplusage and the imperfectness of it shall not make the Bar vitious and the Remainder here by him commenceth not upon Condition but it is a limitation and explanation from the time that it first begun for nothing or words makes a Condition but such which restrains the thing given as If I. Lease for life upon Condition That if the Lessee die or maketh waste and I. recover the place wasted or any parcel of it That I. shall enter into all for it is a Condition for that part in which no waste is done because it restrains and defeats that part And if it be a Condition here yet the Remainder thereupon is good if it commenced and vested at any time during the particular Estates 24 29. 32 34. for when he hath Fee-Simple he may Condition with it as he pleaseth if it be not against Law as if I. Lease for life upon Condition That I. S. paies to me 20. l. that I. shall enter then the Remainder is void because the entry avoids the first estate and then no particular estate continues upon which a Remainder may depend Brown Justice to the same purpose The entry of the Defendant shall be intended immediately for this is the most common intent and a Bar good to a common intent shall be intended that he entred presently after his Title accrued and to the matter in Law hold that the remainder shall be good upon Condition Montague Chief Justice to the same intent The entry of the Defendant shall be intended presently for this is the most common intent and a Bar good to a common intent is good as 21. E. 4.83 in Assize the Tenant pleads a discent to him as Son and Heir and he entred and it was held good yet the Father of the Plaintiff might have abated and died seised and then the Plaintiff is in as Son and Heir in which case the Tenant might not enter But this is not intendable but the most common intent is That the Tenant entred immediatly after the death of of his Father So 9. E. 4.12 in Debt against five Executors at the Distress 3. makes Default 2. appears and pleads Recovery against them two of 300. and that more they had not in their hands Exception taken That because by intent there should be five Executors two might have abated the first suit and so the Recovery not duly had but holden good because it may be that then they two onely administred and then they did lie against them two onely and the most common intent is that it might be so rather than at first to lose advantage to have abated the Writ and therefore the Plea in Bar was held good and Execution duly had and if it were otherwise the Plaintiff ought to have shewed it So 21. E. 4.8.1 In formidon in discender The Tenant pleads the release of the Demandant without Warranty in Bar yet might be made by him in the life time of the father and then it is no Bar but it shall be intended to be made after the death of the Father if the Demandant replies not to the contrary but if he which pleads in Bar is bound at a time certain he ought to shew the day of his Act certainly 24 26 27. as the day of entry for Mortmain so that it may appear to be within the year So if one justifies for Common between Lammas and Candlemas So if one justifies by Warrant by Licence by Authority he alwaies ought to shew the time certain of his justification so that pleading in abatement of the Writ or a plea after the last continuance ought to plead certainly and these are observed as principles in our Law but he which pleads in the Negative ought not to plead certainly If he would dwell c. It is like that it is not a Condition here because it is not
a Recovery as a Fine is without Attornment for the habere facias seisinam recites cum A recuperavit seisinam suam c. because the Husband raised the use First it is his purchase and so within the words of the Statute and if not yet it shall be within the equity and nevertheless it is penal Sanders for the Defendant The Statute here is penal because it goeth in avoidance of Estates and abridges power and therefore not equitable And for this Statute of W. 2. cap. 14. before fol. 17. expectet emptor for Warranty because he vouches an Infant and yet it is adjudged 18. E. 4.16 If he maketh a Feoffment over this Feoffee shall vouch because penall against one shall not extend to another So by 32. H. 8. cap. 33. The dying seised of a disseisor without peaceable possession before for five years shall not take away the Entry of the disseisee yet if one Abator die seised within five years this discent shall take away the Entry And so if Tenant for life be disseised and the disseisor die within five years and the Tenant for Life dieth he in Reversion or Remainder may not Enter because he was no Disseisor to them and to the discent they had no Title to Enter but the Tenant for Life and taken strictly because it abridgeth the Liberty given by the Common-Law By inheritance is understood Land by dicent as it is proved by a case in 7. H. 4.5 and a cui in vita abated because it was quam clamat esse jus Hereditatem suam whereas it was his own purchase And by 4. H. 5. cap. 3. which speaketh of Lands by purchase or by discent and the disjunctive prove the difference between the words Purchase intends Land by gift or purchase which is by Title Disseisen is not purchase because without Title Now because the Plaintiff hath in the Replication said That the Grandfather of the Defendant was seised in Fee for to prove the Defendant to be within the first Branch the Plaintiff ought to shew here how the Husband of the Defendant came to the Possession for the manner of coming to the Land is Issuable because it may be by Discent Purchase or Disseisen And a Joincture made by a Disseisor to his wife is out of the Statute Recovery without Execution is not a discontinuance Harris Serjeant argues to the same intent And he taketh also that Covin cannot be where the Title is good except that wrong be done by him which hath the Title and this ought to be shewed for here in respect that the Title is confessed to be good in this That it is not traversed nor confessed and avoided this Recovery may not be averred to be by Covin for this avernment is repugnant in it self and it cannot stand together to say that she did right by Covin And as to the Statute he taketh the case here to be out of the words of the Statute And note thou that he argued to all the other points moved to the same purpose that they were arguod before Molineux Justice It is a vain thing to aver this specially which is apparant as the Covin and therefore when the Tenant infeoffes his Son within age by Collusion the Lord shall seise him for a Ward without shewing this Collusion specially So if the Husband will confess an Action the Wife shall have Dower by the Common Law proved by recital W. 2. cap. 4. For it is intendable by the Law to be Covin apparant but it was doubted if the Recovery had been by Default but here the Action had been tryed by the Verdict of 12. men the cause of the Covin ought to have been shewed because the Law giveth credence to it As 5. H. 7.20 Upon an Attaint no Supersedeas shall be granted because the Law presumes the Verdict to be true untill the Reversal be tryed upon Error in Deed or Record so that the Law hath an indifferent judgement of it viz. to be true or false And so the Covin averred in the avoidance of the trial by Verdict shall be shewed certainly for the credence given to the Verdict Also Covin upon a good Title is prohibited because the Statute of 11. H. 7. is generall And so Covin generally averred here without falsifying of the Title is good as 4. H. 7. cap. 20. saith That if a Recovery be pleaded in Bar of a popular Action the Plaintiff may aver it was by Covin generally by the Warrant of the Statute As to the second exception the Stat. expounds it self to be intended of a Recovery without execution Every Fee-simple is an inheritance and then she had an use in the inheritance of her Husband and held that the Wife held the inheritance of her Husband that is to say his Land in use joyntly with her Husband and so within the words of the Statute and if not it shall be within the equity and intent of the Statute and he took without question that the Heir in Tail might enter presently and our the Wife which is Defendant and so held the Plaintiff should recover Hales Justice to the same intent And first to the Covin the Replication is good without shewing cause of it And the Statute is for frail inconstant women and will not make them Judges if the Title of Action be good or not 18. R. 2. cap. 17. gives receipt to him in Reversion where the Tenant for Life is impleaded by Covin of the demandants that the Tenements shall be recoverred and he in Reversion because it speaks generally of Covin 2. H. 6.14 and 11. H. 4.3 For this cause there it sufficeth to say That Tenant for Life pleaded faintly and pray to be received without shewing cause otherwise it is of Covin at the Common Law and 11. H. 7. would have limited the pain to fained recoveries expresly if it had intended so much And the Statute prohibits the Covin onely be the Title good or faint for faint Recoverie by Covin the issue in Tail may falsifie before Warranty made 20. years after the Disseisen yet it commenceth by Disseisen by the intent As if the Father Disseiseth the Son to the intent to make a Feoffment with Warranty to Bar his Wife Recovers against one which outs the Tenant by Covin yet she had not good Title of Dower is a Disseiseress and Covin is apparent here because he never took view voucher essoin or other delays which he might The Statute saith That the Recovery shall be void whereby it is not intended that it shall be executed and shall not be intended to be by Disseisen without shewing The words of 11. H. 7. explain the intent That such Wives who have Lands in use or use in Lands are within the Statute Recovery against Tenant in Tail was good onely for his life before this Stat. and therefore comprises use here because the Stat. shall not be made in vain for Tail in use may do as great prejudice as Tail in possession and so the
will not claim nor enter into the said land in bar that he entred not nor claimed the Plaintiff replies that he claims he ought to say how viz. That he came to the Land and claimed and entred So in 5. E. 4 6. in Replication the Plaintiff ought to shew how he is next of bloud to the Woman ravished with consent to the ravishment So for Mortmain how he is Ld. So for receipt how he came to the reversion by special conveyance to the things which the Statutes give by general words as here Titles alwaies ought to be certain because he that makes Title is by this an Actor and an Actor ought to plead certainly by Hales fol. 51. b. If a Wife which hath a Joyncture by her Husband suffers a faint recovery contrary to 11. H. 7. if the Daughter enter the Son born after shall not out her during the life of the Wife By Montogue he may enter presently and save because the Statute saith he shall enjoy it according to his Title therein and the Title is Tail which is devolved to the Son and after f. 1â—… But the Daughter because prima de sanguine â—…ring because the Wife assents to the Ravisher shall hold against the Son born afterwards and there it is Fee-simple In 5. E. 4.6 So 9. H. 7.25 the Daughter shall hold the Remainder appointed to the right Heirs against a Son born afterwards because it is vested in the Daughter as a purchaser because it is Fee-simple to which the Son afterwards born hath not right for the Land was never in any of his Ancestors before Et possessio fratris de feodo simplici facit c. of Fee-Tail not but it discends to the youngest Son of the half bloud So a Bastard eign-abate in Fee-simple Land and dies without interruption and his issue enter he shall hold against the Mulier puisne 39. E. 3.38 Of Land entailed it is otherwise so it is a great difference between Fee-simple and Fee-Tail and according to the Proverb One shall beat the Bush and another shall have the Bird. As 9. H. 7.24 and 25. A man hath Lands by the Mother and aliens upon Condition and dies without issue the Heir of the part of the Father enters for the Condition broken the Heir on the part of the Mother outs him 14. H. 8.18 by Portman if a Remainder in Tail be once executed the issue in formedon shall declare upon the Gift immediately for all passes at one time and upon one Livery But in 20. Ass Ph. ultima it was shewed of a Reversion after Seisen or making Title by grant of the Reversion he which makes Title is alwaies Actor and ought to plead certainly So 2. H. 6.14 A Patentee sheweth his Letters Patents if he maketh Title by them Words alwaies if they are ambiguous and obscure in Statutes have been expounded according to the intent of the makers as W. 2. cap. 3. speaks when a man amiserit per defaltam is expounded when the Husband and Wife lose by default because the Law alwaies was that the Wife may enter if the Husband alone lose by default So W. 2. cap. 1. Et si finis super hujusmodi tenementa imposterum levetur ipse in re sit nullus The Words seem to make a Fine void but yet it is not void but is a discontinuance and void as to bar the right of Tail So the Statute of Gloucester cap. 3. saith Whereof no Fine is levied intends by husband and Wife for they may well levy the marriages of Women and their Estates and advancement by this are greatly favoured in our Law for 14. H. 8.7 The Wife shall recover her Land given causa matrimonii praelocuti if the Feoffee will not marry her So shall have all Free-hold after Divorce So a Wife shall have a Cui ante divortium to recover the land lost by the Husband and Wife by default before the Divorce So 11. H. 7. intends to punish women if they will recompence this favor of the Law with wrong to the disinherison of Heirs here the Wife hath an Estate in the use and by his inhereditament and the Land and Use also is the inheritance of the Husband and therefore within the words of the Statute because an Use is an Hereditament For 5. E. 4.7 possessio fratris of an Use good for the Sister also if she hath the value of 40. s. in Use 15. H. 7.13.5 E. 4 7. and by Litl 108. he shall be sworn in Assizes by the Common Law and Statute of Pernors of Profits and other Statutes have admitted an Use for an Hereditament and the Land and use also is the inheritance of the Husband for an inheritance is such an Estate as the Heir may inherit as he may here and every Fee and Tail by purchase or discent is inheritance by Littleton and Britton contains many errors As to the Case of cui in vita in 7. H. 4. before fol. 47. by those of the Chancery and also by the Register Original 232. is the one the other quam clamat esse jus hereditat c. The Feoffees here were seised to the use of the husband and every of them hath an entire Use for between Husband and Wife are no moieties and after the execution of the possession to the Use By 27. H. 8. The Parliament made the Conveyance of the Land from one to another and the Feoffees are Donors for when a Gift is made by Parliament every one by it is privy and assents to it yet the thing shall pass from him which hath most right and most Authority to give it As in 21. H. 7.32 He to whose Use and the Feoffee joyn in a Feoffment it shall be said the Feoffment of the Feoffee for they have most Authority for to give this So Tenant for Life and he in a Reversion joyns in a Feoffment it shall be adjudged the Livery of the Tenant for Life So if one seised in Fee and another which hath nothing joyns in a Feoffment it shall be said the Feoffment of him which hath right and the confirmation of the other So here it shall be said the Gift by Parliament of the Feoffees and the assent and confirmation of all others For if any other shall be adjudged the Donor the Parliament should do wrong to the Feoffees in taking the thing from them And an Act of Parliament will not prejudice any man as 19. H. 6.62 the Rector of Edington had an exemption from Tythes by the Kings Grant he afterwards agrees to the Act which granted Tythes to the King and so was one of the Grantors yet shall not take benefit by this but shall be discharged For the Common Law saith That none shall be damnified by such general Act made by the Parliament and therefore W. 2. cap. 1. Gifts upon Condition shall not take away right Pattent in London but that remains to this day with protestation to sue in the nature of a Formedon in
be a general because the not referring to the science of the Judges as he doth if he saith generally contra formam Stat. c. a Statute hath no words in vain Whiddon for the Plaintiff A general Statute shall not be recited as 27. H. 8. of Conveyance of the possession to the Use So the demandant may Demur without recital of the Statute of W. 2. c. 36. If the Tenant vouches out of the line So an Executor of an Executor shall have account without recital of the Statute of 25 E. 3. cap. 5. So 5. H. 7.17 Information for Liveries good without reciting of the Statute Misrecital of the surplusage shall not make the mattor bad as 21. H. 6.1 by Newton one as an Executor shall not bring an action of Debt upon a Contract made with himself he shall not shew the Testament for that the naming of him Executor is surplusage So 33. H. 6.19 by Danby in Detinue against two as Executors They shall not plead that another is Executor with them because they are not charged as Executors But Detinue is cause of Action and the naming of them Executors is surplusage A man shall not aver that which by the Statute is made apparent as the Lord shew that he entred into the Land within the year because his Tenant aliened to the Dean and Chapter he shall not aver that it is Mortmain because it appeareth now nor here that it is a pretenced right because he counts that the Defendant nor his Ancestors c. were not in possession the space of a year before the Lease and then is pretenced Conveyance to the Action as the Lease is here shall not be pleaded So certainty is the substance it self as appeareth 34. H. 6.4 by Prisot in decies lantum If the Plaintiff sheweth such part of the Record as conveys him to his Action it is sufficient without shewing all But a Writ judicial ought to recite the Record certainly out of which it issueth because the Record is the substance and effect there and not only the Conveyance a stranger to the Deed or thing as the Plaintiff here is to the Lease that he pleads shall not shew the certainty of it as 35. H. 6.8 after fol. 148.13 H. 7.19 By Fineux au ancient Major in Trespass justifie the taking of goods because the Plantiff was out-lawed without shewing Pattent because he is now as a stranger to them for it belongeth to the successor and not to him So a Wife shall have Dower for a Rent Charge granted to the husband without shewing the Deed. So 7. H. 6.1 by Strange Lessee in Debt against him for Rent reserved may say That the Estate of his Lessor was upon Condition for which broken such a one had entred before the Rent arear Judgement if Action without shewing what condition Sanders to the same intent The Statute here although penall yet because it is beneficial for the Common Wealth viz. for to avoid maintenance subordination of witnesses c. Things taken out of the Works thereof taken by equity and the words obscurely expounded most strong for the Common wealth and words are but the image of the Statute and the life thereof in the minds of the makers and Expositors of it and which approach nearest to their minds are the true Expositors and words should be inclinable to the mind So W. 3. cap. 2. Fines upon Lands intailed ipso jure sit millus viz. as to right to be bound but as to the possession is a discontinuance before fol. 57. and after fol. 137. So the heir may demand the heritage of his Mother aliened by his Father if he onely Levied the Fine Yet Gloucester cap. 3. saith Whereof no Fine is Levied intends lawfull Fines by the Father and Mother before fol. 57. So a Statute Marchant wills that it shall be delivered to the Conusee Yet 21. E. 3.21 shall be delivered to the extendors because prised too high it shall he delivered to the praisors for the price after f. 172. So if the Plaintiff be nonsuit in a second deliverance the Defendant shall recover Dammages by the equity of 7. H. 8.4 Return irreplevisable shall be awarded and so by this means the Plaintiff is barred and so the intent of the makers directs the words and equity of Statutes Lessee for years hath a right Estate and Title to Enter right because by Bracton he hath jus utendi fruendi in alieno libero Tenemento an Estate because a Remainder in Fee is good upon a Lease for years and a Remainder is not good without an estate precedent Title because 7. H. 7.11 a Termor may falsifie a faint Recovery against his Lessor by the Common Law So 9. H. 6.64 by Strange I grant to B. That if my Tenant for life dies living my self that he shall have for 10. years B. may maintain because he hath colour yet he hath nothing and is in doubt if he shall have it for 10. years or not Then if the Leffee for years hath such interest that by the Common Law he may maintain there is no need of a remedy for all other the Statutes before avoid maintenance the suit depending for the Staute of 32. H. 8. is made for the avoidance in medling with other mens matters before any suit or after Account shall not abate for default of form if it hath substance 36. E. 3. cap. ultimo After fol. 190. If one be found guilty of an offence which is pardoned by Parliament Judges ought not to proceed to judgement yet it is not pleaded because they are bound to take notice of it for it appeareth to them by judicial knowledge 26. H. 8 7. by Fitz. H. But if A. kill B. in the presence of the Justices and C. is found guilty of it 7. H. 4.41 by Tirwit and Gascoin the Justice ought to respite judgement because he knoweth the contrary but not to acquit C. because he cannot judge of his own knowledge 22. E. 4.47 where it was granted by Parliament That A. should have a Writ with Proclamation out of the Chancery against one G. to answer divers trespasses which were contained in the Act of Patliament and the Writ was abated by award because it did not mention those Trespasses in certainty because a private Act and there not recitall or misrecital shall hurt And as to the cerainty of the Term he shall not shew it because he is a stranger to it As the Defendant shall plead Joyntenancie of the Plaintiff without shewing of whose gift All the Court say That Declarations ought to have certainty So that the Defendant may know to what thing he ought to answer after fol. 193. and 3. H. 7.12 So 3. E. 4.21 In Debt for a sallary against a Successor declares That he was retained with his Predecessor and shews not who retained him because a stranger may retain him the County shall abate by the better opinion for the incertainty good by Brook Laborers 39. and the truth is That
to the first nor cannot pass by the second Lease for that is severed for the time by 38. H. 6. fol. 38. That a thing in possession may not be parcel or appendant to a thing in Reversion as a Lease for life of a Mannor except the services of I. S. it is not parcel of the Mannor But is a signiory in gross and the Land shall be demanded at the common Law and not in the Court of the Lord by Bromely But here quere if the acceptance of the second Lease be a surrender of the first and the severance by the second Lease and then the severance by the exception is determined and so the Mannor passes entire as it was at the commencement 3. If the recitall of one part of the Statute which maketh for him which recites it be sufficent 4. If the pleading of a surrender or grant to the King by deed inrolled generally without shewing of the enrollment specially be good 5. The King is seised Jure Coronae of Lands coming to him by the dissolution of Monasteries the Tenant pleads a Lease for fifty yeers in Bar and after by his rejoynder pleads that the said Lease is made good for twenty one yeers by the Statute of 31. H. 8. this is a departure for that the state cometh after the Lease otherwise it is of a thing pleaded in affirmance of the Bar which precedes it 6. That the second Lease made by an Abbot within the yeer of the making of the Statute of 31. H. 8. to one which hath a Lease for yeers of it before without the reservation of the Ancient Rent then it shall be good for twenty one yeers only from the making of the second Lease per curiam Bromley The Lessee for yeers accepts of a new Lease within one yeer after the making of the Statute of 31. H. 8. cap. 13. Admitting this second Lease to be good by the same Statute yet it is a good surrender of the first Lease for that the second Lease was once good and shall be expounded to be viod by the Statute as to the King and after the Land comes to the Kings hands and not ab initio and so he shall not avoid the operation of the Common Law in the Surrender And by the Common Law the taking of a second Lease is a surrender of the first for both Estates may not be in one and the same person at one and the same time For if the Lessee for fourty yeers taketh a new Lease for twenty yeers upon condition that it shall be void if he doth not such an Act the condition broken avoids the second Lease But not with such relation that it shall take away the Surrender of fourty yeers because it was once executed absolutely So if a recovery is had of Land the which is afterwards reversed by error which avoids the recovery yet it doth not so avoid it that the Recoveror shall be punished by Trespas for the issues taken in the mean time two points upon the Statute here first the second Lease is not so void by the first branch of the Statute so that at the time of the second Lease made the first Lease hath his continuance but was determined and the Statute is in the copulative and then it is not determined by the making of the second Lease which then had his continuance then was not determined finished or expired according to the words of the Statute Secondly the second Lease for fifty yeers is abridged to one and twenty yeers by the second branch for contrary to equity it will destroy the former Lease and the second also And so that the same Lease exceeds not twenty one yeers express in the Statute extends to the terme abridged and not to the intire new term to make the clause conditional but to make the State abridged good for one and twenty yeers and shall be as a double repetition of the first clause only and be also a declaration of the State and expounded in the future tense that it shall not exceed twenty one yeers which is all one with the words for twenty one yeers as in a writ to the Shereist to seiz goods for the King Ita quod nullus adea manum apponat And in the Statute of Gifts conditionall Ita quod non habeat potestatem alienandi The word So is not conditional but maketh a plain declaration of the thing before by the words of the Statute sometimes expounded contrary to the text to make this agree with reason as by 25. E. 3. cap. 16. after fo 205. by the exception of non-tenure of parcel no Writ shall abate but for the quantity of non-tenure which is alledged expounded by 5. H. 7.7 where the thing demanded is severall as Acrâ—s for in a precipe of a Mannor if the Tenant pleads non-Tenure of parcel all the writ shall abate because an intire thing and there the demandant ought to have an exception in the writ because it is contrary to reason that a man shall demand the intire mannor against one which is not Tenant but of parcel of that which he endevors to recover So Praerogativa Regis is for the Tenure of him in Capite where the King shall have Primer seisen of all his other Lands yet 30. H. 8. and after fol. 204. for Soccage in Capite he shall not have because it is contrary to reason that such a small Tenure should be so greatly charged So W. 2. cap. 21. gives entry to the Heir yet he shal not have the arrerages in the life of his father old natura brevium 138. and this exposition is contrary to the text because the text is contrary to reason to give an action to the Heir for a thing in consideration of another thing not due to him So Glouc. cap. 3. for warranty with assets 21. H. 7.10 11. H. 4.21 the things taken by equity is expounded contrary to the principall Perveyance Instans est unum indivisibile in tempore quod non est tempus nec pars temporis ad quod tamen partes temporis copulantur Townsends Case A Woman Tenant in tayle taketh husband who maketh a Feoffment in 20. H. 8. to the use of himself and his wife for their lives the remainder over the wife is not temitted Adjudged 1. For that she cannot avoid the discontinuance by entry as she might after 32. H. 8. cap. 28. but hath an action viz. cui in vita given to her to recontinue the possession which she useth not but cometh to the possession by another mean she ought to take it in such order and with such appendances as the Law limits to such mean the mean which she useth here is 27. H. 8. and as the Statute appoints the possession to her she shall be adjudged in and not otherwise although she be a Fem Covert For Coverture or Infancy is not materiall here for it is not excepted in the Statute And the Statute of 27. H. 8. of
to some purpose and not to be void because it is made to some purpose as 21. H. 6.8 one may plead a Lease for years and a release as a Feoffment So 7 H. 6.7 and 22. H. 6.42 The Feoffment of a Joynt-Tenant as a confirmation So 9. H. 7.2 The King by Parliament confirms the estate of the Patentee dat conceditur he may use it as a Grant or confirmation So in 21. H. 7.23 Obligor may plead a Grant That it shall not be sued before M. in Bar or have a Covenant for it So here the party uses this as a Demise of the Land and not as a Grant of the Reversion for the Reyersion of the Land compriseth the Land as Litl fol. 106. after fol. 161. a release of all the land to him in Reversion is good So 5. H. 5.8 A Lease for years and after a grant of the rent this changes the reversion So Litl fol. 150. recovery of the land against Tenant for life will divest the reversion So 19. E 4.9 Writ of Covenant and the Concord is of the land to pass the reversion So Quid jur is clamat recites That the land was granted before the reversion was So before fol. 149. Formed on shall say de uno messuagio where the Reversion was granted in Tail So a Reversion in Fee Granted to a Termor he hath the intire Term presently in Possession for the reversion of the land comprises the land in substance one word will pass the thing by another word having the same sence yet varying in name because one same thing and intent of the party as 2. H. 6.4 before fol. 134. and afterwards f. 170. reverter for remainder So 3. H. 6.6 makes a Testament and commits Administration is an Executor So 20. H. 7.11 Retorn for revert by the Grant by Grant of the Church Advowson passes 14. E. 4.2 by Grant of the name of a Clerk a presentment passeth So before fol. 151. by Stagnum molendinum the Soil passes and the thing contained in the premises named in the Habendum by another name containing the same in substance is good So a Grant of the nomination of an advowson Habendum the advowson good So Manerium Habendum the services So mannor by Fine Habendum one acre of this in Fee he shall have the acre in Fee and the Mannor for life because it wanteth limitation of the estate in the residue of the Mannor So a Gift of a Mannor Habendum the reversion in Fee of one acre which is in Lease for life good Fee for the acre and for life in the Mannor because no estate is expressed in it So Litl fol. 120. confirms the estate of Lessee for life Habendum the land in Fee good because in the estate land was contained So a joint-Joint-Tenant confirms to another Habendum the land to him and his Heirs the Fee will pass the Habendum may limit the estate to a stranger not named before in the premisses as 13. H. 7.17 a Devise to I. Habendum to him in Fee after the death of the Wife of the Devisor not named before hath an estate by implication of the intent of the party So 5. E. 3.17 a man gives land Habendum in Franck marriage with a Daughter So a Lease to A. Habendum to him for 20. years the remainder to B. in Fee good because the intent of the parties therefore a fortiori here the Habendum may explain the intent of the parties in the premisses Dieâ— Serjeant for the Plaintiff A reversion is Jus sine possessio revertendi nomen verbale quasi terra revertens after the particular estate ended proved by W. 2. of Advowsons of Churches and prayer to recite the reversion if he shall overlive the Tenant for life and bringeth wast good 14. E. 2. Fines saith remanera and not revertera where a reversion was granted before fol. 157. a reversion granted in Tail Formedon in remainder lyeth because the entire estate is not given Fitzh nat br 118. D. 10. E. 2. the Heir grants the other two parts with a third part in Dower cum acciderit reversion of Dower pass 33. H. 8. cap. ultima the not making of Leases in reversion is expounded That they shall not make Leases beginning after the first ends ad firmum dimiserunt imply that the parties intend that it shall enure as a Lease of the Demeasne for properly a man may not be Farmor of a reversion not have an Ejectione firma of a reversion No Attornment needs upon a Lease for years because it is a Contract interpretationem apportet esse benignam ut res valeat as 30. E. 2. Discendera pro Remanera 6. E. 2. recipe pro re-entry So a gift to one for life post ejus decessum to 1. in Fee good remainder for the manifest intent an Habendum giveth an estate which was not given before and to a stranger not named before and alters the estate given in the premisses as a Confirmation to Husband and Wife or to Tenant for life remainder in Fee to another good Litl 129. So Habendum by moity Litl 66. makes Tenants in common 8. E. 3.427 by the better oppinion a gift to two Habendum to one for life and after his decease to another in Fee the one shall have the entire for life onely notwithstanding the Joyncture in the premisses Otherwise fol. 153. if it be comprised within the Grant good in the Habendum as a Grant De dispositione Ecclesiae habendum advocationem grants de Soil the Wood habendum the Wood defundo domus habendum domum Manerium habendum the advowson appendant good but a Grant of Common out of the land habendum the land or herbage of a Park habendum the Park and such like are not good because not comprised in the premisses Stamford Justice rules of Exposition First deeds shall be taken most beneficially for the Grantee Secondly they shall not be void where the words may be applyed to any intent Thirdly words shall be applyed viz. expounded to the intent of the parties and not otherwise The intent directs gifts rather then the words as 41. E. 3.6 16. H. 7.10 by Fineux Grantee of annuity pro consilio hath divers faculties yet the Councel shall be given in such a faculty as was intended 9. E. 4.22 one bound to pay Recepta recipienda shall not pay what he received not but that which he hath received because the intent is taken more forcibly then the words 7. E. 3.7 Lessee of of a house which may for his profit make houses there within may not pull down or make waste for the intent was not so Sanders Justice to the same intent with the Plaintiff Exposition of Deeds shall be reasonable without wrong to the Grantor as a Grant of Corrody Estovers and Common for all Beasts he shall not have with Goats and with the largest advantage to the Grantee as a Disseisor releases all his right to the Termor he hath for his life
naturall body so may he purchase As 34. H. 6.34 and by pleading there H. 6. seized in fee of an Advowson in gross conveyed it from H. 5. to him who granted it to the plantiff good without shewing in jure Coronae or how and there if the King hath Land parcel of the Crown and parcell by purchase and dies having a son and daughter by one venter and a son by another who enters and dies without issue the daughter shall have the Land purchased and the son the other So purchased Lands by the King shall go to the naturall body So 35. H. 6.28 by Moyle after fol. 247. Land in Gavel-kind given to the King and his heirs the eldest son being King shall not have all because it vests in his naturall body but perquisites of a villaine the King hath jure Coronae as 41. E. 3.21 if a Bishop who hath a villain in the right of his Church enter he shall hold it in his body politick and shall be in the right of his Church because the signiory was for a thing in respect or by reason of another shal be in the same degree and right as the principal was at the Common Law That an estate of inheritance viz. Fee-simple was by the Common Law before the Statute First absolute when a gift was made to a man and his Heirs Secondly conditional when to him and the Heirs of his body for that formedon in Reverter at the Common Law if the Donee dies without issue in Remainder not for a remainder cannot depend upon a Fee Conditional until this Statute and before this Statute the Donee might alien after issue had so bar the issue because they construed the having of issue to be a performance of the Condition which was implied in the words and in the intent of the Donee and after issue to be as an absolute Fee because he had such heirs which were limited But if before the Statute the Donee had issue he might alien and good then here 4 E. 3. and 30. E. 1. which was contrary to the will of the Donor for which the Statute was made and then Fines were of great regard yet by this Statute ipso jure sit nullus viz. as to the right issue or Donors the Kings prerogatives are great yet the Common Law so admeasures them that they take not away any of the inheritances of the subject and therefore the King shall pay Toll though not for things bought yet Toll Traverse he shall because it is for going over another Soil because it toucheth the inheritance to permit a way over his Soil without paying any thing 46. E. 3. 23. H. 3. 35. H. 6. 26 28 29. So for to wave a Demurrer or issue yet may not change one issue into another Term because then it would be infinite which should be to the disinheritance of another 13. E. 4.8 Statutes general made in preservation of inheritances or for the publick good binds the King without naming as W. 2. c. 5. of usurpations but by 35. H. 6. good is not so clear if an infant upon whom the King usurps hath by purchase as well as discent So Merton cap. 5. That ordains that the Kings Ward shall not pay usury viz. That the Rent shall not be doubled during the Nonage of the Heir and therefore in 35. H. 6.60 by Needham if the King gives land rendring Rent yearly at Easter and if he fail to pay at the day That he shall double the Rent the Grantee dies his Heir within age he shall not double the Rent against the King So Merton cap. 6. That a man shall make his Attorney for to follow his suit to the King if it be his Lord or at the Court of another he shall do it So the Statute of 5. H. 5. of additions L. 5. E. 4.32 of one Law which belongeth to a common person the King may not defend the Common right but that every one shall have advantage but every general Statute shall not bind the King without naming of him As Magna Charta cap. 12. Communia placita c. nor such which have an intent onely between subjects and to repress disorder between them those here which concerneth salvation of inheritance or publick utility of the Realm So the Statute of gifts Conditional binds the King because by Justice and Act of Parliament the King hath submitted his will to the Donor The King as Walsh saith hath in him First power to do Secondly Justice to enforce him to do it this is as to others Thirdly Mercie to stay him from doing this is of things touching himself And because after this Statute the King may not say that the estate is Fee-simple Conditional as it was before the Act the case of the Tenant in Tail attainted of Treason was alleadged in proof of it 37. H. 8.7 7. H. 4.32 which proves that the King shall be bound by the said Statute So by 26. H. 8. cap. 13. because it is some estate of inheritance also the Tenant of the King in Capite gives in Tail Tenendum de capitali domino the King shall not have Wardship of the issue in Tail 4. H. 6.19 because it is not now Fee Conditional as before the Statute and therefore he is not immediate Tenant to the King 4. H. 7.16 The King may receive the Services of the Donor by his hands 27. H. 8.26 after fol 249. the King may take the Donor or the Tenant in Tail for his Tenant before Licence or after but once chosen shall not resort Also 8. H. 4.9 Tenant in Tail of a Signioty aliens it in Mortmain for default the Signiory revolts to the King the King seises the Land after escheat the issue in Tail hath the land by petition against the King and therefore is not Fee-Conditionall as to the King but binds the King although in these cases the King claims in the right of the Crown yet here it is very remote from the prerogative because here it remains vested in the natural body of H. 7. For the Plaintiff it was said That the Prerogative of the natural body of the King because of the union of the politick as the attainder of H. 7. discharge ipso facto as soon as he came to the Crown 1. H. 7.4 So R. 3. being Feoffee to uses when he was King the use was gone because the King in his body politique may not be seised to an use of another 5. E. 4.7 and therefore it was enacted 1. R. 3. cap. 5. Rastal Uses 3. That the Land should be in Fee to him to whom the Use was 43 E. 3.22 Franchises extinct by purchase of the King yet to him and his Heirs of a Mannor to which they were appendant So the King in his natural body and another purchase or if the purchase is before that he is King they are not Joint-Tenants but Tenants in common Fitz-nabr f. 32. G. because no body politick may hold in Joincture So 44. E.
copulative for to make words to stand with reason and with the intent of the parties as the Obligee shall pay 10. l. if he infeoff not him or his Heirs when he cometh to I. intends yet words disjunctive in sense That he shall infeoff him if he be living and if dead then his Heirs because he cannot have an Heir during his life so here a Covenant to make a Lease at a time to come to him and his Assignes Copulatively shall be taken disjunctively viz. to him if he be alive and to his Assignes if he be dead So 4. Mar. before 171. A. and B. Grants a Rent Charge of 20. s. out of all lands which they both have the Grantee shall have several 20. s. out of both their lands and yet the Grant was out of the lands which were to A. and B. 19. H 6.3 I release all actions which I have against A. and B. if he hath any actions against either of them they are gone So Arbitrators 2. R. 3.18 may make Arbitrement of actions joynt and several where one and two others submit themselves to their arbitrement because it literally couples them yet in sense goes to them severally And so in the Common case in Indenture of bargain and sale which Covenants to make a sure estate or deliver evidences to the Bargainee and his heirs within two moneths and he dies before he ought to make the estate to his Heirs because impossible to be performed literally viz. joyntly for in his life he cannot have Heirs that thing which another doth by my authority is my act As if I demise That I. S. shall sell my land or authorize my Steward to demise it or my Baily to sell my sheep which doth it so it is my alienation demise and sale by him So the second Executor shall be immediate Executor and in such degree to the first Testator as the first executor was as chosen by the first executor by force of the Authority given to him by the first Testator which intends the same or otherwise all contracts would be destroyed by the Common Law in a short time viz. after the death of the first executor because administrators could not have actions given to the intestate untill 31. E. 3. cap. 11. proved by 10. E. 3.2 the executor of an executor because executors have not those actions by the Common Law but by Statute and because by equity they were not to be extended to an executor of an executor but the action of Debt was put in the Act in 25. E. 3. cap. 5. not of necessity because the Law gave it to an executor of an executor before but for to take away the doubt that some had of it and so an executor of an executor may have all actions that the Common Law gives to the first executor and so may have actions of Covenant and if not they should have it by equity of the Statute of 25. E. 3. cap. 5. Admitting that the word Assignee was void or omitted out of the Covenant yet this Lease here shall be made to the executor for that the intent which is the chief thing to be considered in every agreement was such which shall be performed so near as may be or the words shall not be effectual and the chief effect of the agreement was the estate which should be made not the person to whom but if the Tenant bind himself and Covenant to do corporall service to the Lord he cannot to the Heir or executor because it must be done to the body of the Lord and if I perish the thing also perisheth The intent performed and not the words good as in the cases of Litl fol. 82. That the Feoffee shall re-infeoff the Feoffor and his Wife and the Heirs of their two bodies before fol. 6. And it is not requisite alwaies that in agreements every thing ought to be performed according to the words for if the Mortgagee accept of another thing in another place good Litl f. 79. So if the Obligee cometh not to the place at the day appointed to receive his summ he hath not lost it 7. E. 4.4 but 19. H. 8 12 if the Obligee sue for the penalty the Obligor ought to shew that he was ready at the day and place and say that he is yet ready So payment of a lesser summ at another place Perk. fol. 145. or before the day 10 H. 7.14 good So Litl fo 77. upon a Mortgage the Heir or Executor of the Feoffer shall pay at a day certain and Litl fol. 76. the Feoffee of the Feoffee pays at the day good because he hath interest in the Land So 17. E. 3. ass pl. 2. the Disseisor Grants by Indenture That if the Disseisee paies unto him 10. l. such a day that one release which the Disseisee hath made to him shall be void and before the day the Disseisor makes a Feoffment and at the day 10. l. was paid to the Feoffee Words performed and not the intent as it may be in some cases yet the agreement is not performed as 21. H 6.10 before fol. 23. one binds himself that his Feoffees of the mannor of D. shall Grant out of it 40. s. annual Rent to the Plaintiff he hath 3. Feoffees and two Grants it is nought because he intended that all should do it for there but two parts of the Mannor are charged So 3. H. 7.4 one bindes himself to infeoff me of the Mannor of Dale he infeoffs an other of parcel and afterwards me of the Mannor he hath performed the words but not the intent which was That I shall have all the Mannor as then it was So before fol. 21. and 23. si vellet inhabitare residens c. during the Term intends all the Term. So 10. E. 4.16 the words of a verdict true yet the verdict false because he brought Annuity as Abbot and prescribe so without naming of him parson where he had the annuity in right of his Parsonage as Parson Impersonee the new Lease here shall be in the Executor of the Executor to the use of the first Testator because the Title of Covenant cometh to him derived from the first Testator and that which is done in perfermance of the Covenant ought to be in him in such degree as the Covenant was in him So 11. H. 6.11 An Executor assignes Auditors to one which was an Accomptant to the Testator and he is found in arrearages the Executor shall have Debt in the Detinet onely because the Debt shall be in him as Executor and hath a respect to the foundation So 32 H. 8. and Doctor and Student 92. One hath a Villain for years as an executor the Villain purchaseth hands the executor enters it shall be to the use of the Testator and assets in his hands because the Villain which was the cause of it was to such use So here the Covenant which was the cause of the Lease cometh to the executors in right of the
Sturgeons because they are the most excellent fishes that the sea or water renders So that the Treatise of Praerogativa Regis ca. 11. which saith Rex habebit Balneas Sturgiones is but a Declaration of the Common Law before Secondly for the necessity of defending his people and preserving the Common-wealth against forreign hostility Thirdly for the commodity of his Subjects That they by the Coin made thereof which the King onely may make may have between them mutual Commerce and Traffick because if the subject shall have gold or silver found in his own land he might convert it into Coyn for falsifying or counterfeiting money was Treason at the Common Law and for that cause a woman was burnt 23. ass pl. 2. Also it would be inconvenient That a subject which is proprietor in the land should have it for that he thereby would exceed the King in Treasure which would be perilous to his estate The second proofe was by presidents of three sortes First Commissions Grants and Demises by which the King hath Granted such Mines in others Lands viz. in Annis 32. E. 3.8 R. 2.5 H. 6. 15. E. 4. and primo H. 7. and in some of them the King gave licence to digg in another land without licence of the owner and where some of them saith habita licentia fodiendi which is intended land subject where they give amends for the digging or Assign part to the Lord of the Soil this is of courtesie and clemencie of the Prince and not of necessity Secondly Accounts of the Grantees of such Mines Thirdly Informations and Impleading of them which have disturbed the Grantees or Imported their Oar also the King may punish him which taketh Oar in another mans Soil And so Charters Accounts and Pleas against the takers of Gold and Silver in the Soil of another proves strongly those Mines to belong to the King by his Prerogative for the Records of every Court are the most effectual proofs of Law in matters Treated of in this Court and account lies not against an Executor by any except for the King Litl f. 28. The King may seise the Land of his Debtor which he hath by what means or whosoevers hands it cometh after the cause of the Debt Sir William Candish case in the Exchequer The 3. proofe is upon authorities of Law viz. The book called Exposition of Terms of the Law and the reading of Hescot of Charta Forestae and the Laws of St. Edward the Confessor and William the Conqueror and so those Authorities and the said presidents and the reasons aforesaid for the excellency of the Metal and for the necessity of it and the publique good agreeing in one That the King shall have all Mines and Oars of Gold and Silver in Land is Treasure found Thesauri de terra taken for Gold and Silver in Land is Trea. sure Trove the use and continuance Ratifies this Prerogative by prescription although that it need not be contained in the Treatise of Praerogativa regis for the King the Common Law hath many which are not there recited as Tenant of the King aliens without Licence it was a forfeiture before the Statute of 1. E. 3. cap. 12. 9 E. 3.26 although it be to the preiudice of another Free-holder yet because the Law gives those Mines to the King it giveth to him all necessary means to have it by digging with all incidents thereunto for every Prerogative contains in it self prescription for it is in usage and as prescription and usage will give Title or interest to the King in the Free-hold of another as by Prerogative the King might enter into the woods of another and take Trees for to repair his Castles before the Statute of Magna Charta cap. 22. so he might Afforest another mans woods before the Statute of Forresta cap. 2. So 7. H. 3. he might break a Pond and take the fish for his provision So 27. ass pl. 49. The Lord might not take his Villain yet is his freehold and inheritance in the presence of the King for it is a Protection to him for the time So 13. E. 4.6 The King may distrain for his Rent Charge in all the other Lands of him which ought to pay it So the Prerogative of the King chargeth his other Freehold to the Kings distress The King shal have by his Prerogative Mines of Copper containing Gold or Silver in the Lands of another because they are as a thing entire by the Commixture magis dignum trabit ad se minus dignum as 41. E. 3.32 36. H. 6.26 and 3. H. 7.14 The Heir shall have the Charters with the Box if it be sealed so Carts to which Horses are tyed if it fall upon a man the King shall have all Stamford fol. 20. before 243. because as one thing they altogether occasion his death So the King shall have all the Obligations and Horses where one of the Joynt-Tenants is attainted because a thing entire proves that the King shall have all where Gold or Silver mixt with base mettal by Commissions 7. E. 3. and 17. R. 2. 7. H. 4. 17. H. 6.30 and 31. of H. 6. proved also by accounts for Silver and base Mettal no Mine of Copper void of Gold or Silver no Mine of Tin void of Silver and therefore those of Devon and Cornwal for digging in their Land and in other Land for Tin and to have this to their use derive their power from the Kings of this Realm made unto them and giving them such liberties as by Charter 33 E. 1 confirmed by R. 2. but the power given to them for to digg in anothers Land and to pull down houses of another was restrained by the Statute of 50. E. 3. Darby shire and other places prescribes to take lead of Mines steril which is without Gold or Silver without paying any thing On the part of the Earl against the Queen The thing of the most in value is worthiest where the Quantity of Copper exceeds the Quantity of Gold yet the lesse is the most precious Quantity for Quantity the Gold or Silver ought to be of more value then the charges of separating of it from the base Mettal cometh to otherwise this aliquid nihil est if he hath lost by it Wast of 2. d. is dispunishable because de minimis non curat Lex 9. H. 6.36 38. E. 3.7 by this reservation upon the said Demises it is intended a good quantity of Gold or Silver Also because the information sheweth not what value of Gold or Silver is to defray the charge which is incertain and bad because this is the Declaration of the King Also Commissions are not of great estimation but shew the obedience of Subjects and are made at their requests for whom they are granted and many of the said Commissions and Leases were limited That the Grantee should make to the owners of Lands in Cornwal used for the digging of Tin before the said Charter proves by the words themselves
Return of summons of the Exchequer because it concerneth the King himself there So 2. R. 3.4 2. H. 7.7 The Kings Grantee of Amerciaments of his Tenants shall not have the amerciament of his Tenant which holdeth of him and another because it is before other Tenants as well as my Tenant Charters of the King taken according to common intent and other things which have not common intent shall not pass from the King by his Charters And therefore 3. E. 3 the King Grants to an Abbot That he and his Successors shall be quit of repairing of Bridges Cawseys and Walls it discharges not him for repairing of such which he hath been used to repair by prescription as Lord of the Village but it is good otherwise of a Town to which the King hath Granted Murage Pannage or Pontage So 9. H. 6.56 before fol. 243. The Grantee of the King with Warranty shall not have in value without precise words but he may rebutt So 2. H. 7.6 The Grantee of the King of all Fines and Amerciaments in such a County he shall not have Amerciaments if the Sheriff Coroner or other great Officer is Amerced because Royal and a Grant shall enure for common things in intendment So 43. E. 3. ass pl. 15. The King Grants to his eldest Son the Dutchie of Cornwall cum omnibus Wardis Maritagiis c. And one which held of the Dutchie by Knights Service and which held also of one which was in Ward because of Ward by Knights Service dieth his Heir within age the Prince shall not have the Wardship of him but the King because a thing pertaining to the Crown passeth not without special words So the King maketh a County Palatine and giveth to another and Jura Regalia and that Pleas within the County shall be determined there yet he himself shall sue at Westminster his actions arising within the County Palatine as 3. E. 2. For an advowson in the County Palatine of Durham the King brings his Quare impedit in the Common Pleas the Defendant pleaded to the Jurisdiction of the Court and was compelled to answer So an Abbot by the Kings Grant made to him for the amortizing of Land or Tenements may not purchase an Advowson holden of the King in Capite and this case by Wray differs from the case in 41. ass pl. 19. before fol. 332. for there the Charter names the house but names not what Lands by which it cannot be intended that the King was mistaken in the Tenure and therefore it is good there and not for the cause of Ex gratia speciali So 19. E. 3. he might not appropriate an Advowson holden of the King by licence to appropriate So 1. H. 7 23 and 26. A sanctuary for Treason shall not be without speciall Words Ex merâ—… motu c. will not pass other things then the nature of the words contain And therefore the King Grants to a man and his Heirs males excerta scientia c. passeth not inheritance 28. H. 8. A Felon may not wage battail against the King because dangerous for the King Stamford fol. 180 and 182. nor against those of London in an appeal by the Kings Grant 20. E. 3. So if one takes the Kings goods wrongfully the King may seiz his goods until restitution and 8. R 2. if any take Toll of those of the Town of Lynn they may by the Kings Grant take withernam of those another time within their Jurisdiction And so the King conveys not from the Prerogative of his person to the person of another a fortiori he may here where the thing is not but Revenue or profit These words ad humilem Petitionem Comitis deminisheth the force of the Pattent by Catline by Plowden if Gold or Silver will not defray charges the King shall not have it because no mettal without them but because the party shewed it not as our case is the Queen shall have Judgement And this point was not put to the Judges to adjudge because that the Defendant confessed that it contained gold which is intended to be of good value because the best for the King Bret against Rigden A Man seized of 10. acres Soccage Devises all his Lands by writing Tr. 10. El in the Com Pl. Repl. and after purchases 12. acres Soccage and the Devisee dieth the Devisor saith to the Son of the Devisee That he shall be his Heir and have all the Land that his Father should have had if he had survived him and dies Adjudged that he shall not have the 12. acres 1. If the Devisee shall have the Land purchased by the Devisor after the making of his Will Manwood for the Defendant said That it shall be presumed that every one knows the Law in acts indifferent and that the Will is of no effect until the death of the party for ignorance of Law excuses no man and the date and writing of the Will is not effectual but the words of the Will shall be construed as they were spoken at the time of his death And therefore if a man Deviseth a Mannor in Fee a Tenancie escheateth and after the Devisor dieth the Devisee shall have the Tenancy because parcel of the Manor at the death of the Devisor when the Will taketh effect yet when the will made not A woman Deviseth Land and after takes husband which dies the Woman dies the Devise is good because she is discovert when it took effect as she was when she made her will and marriage cannot countermand it which was not of effect in her life Also because it intends no exception for the generality of the words As if she had Devised all her plate and after bought plate and died the Devisee should have all his plate at the time of her death for the ampleness of his words declares his intent to be benificially taken for the Devisee Lovelas and all the Justices for the Plaintiff to the contrary That Land purchased after the making of the Will cannot pass by the words nor intent of the Testator because he had not the 12. acres at the time of the writing and publication of the Testament it is no presumption that afterwards he would have and is as if he had died when he writ and published the Will and therefore cannot have an intent to give it and the death which is the Confirmation of the Will follows the first Acts thereof viz. the writing and publication of it for every Act founded upon discretion consists of 3. parts The first Inception which is writing of the Testament here The Second Progression which is the publishing of the Testament begun The Third is Consummation which is the self same and continues one through all these parts or otherwise the Act is void of discretion And by Lovelas it is proved That the Commencement is to be considered in Wills because if a woman Covert Devise Land by her Will and publish it and her husband dies and after she dies
the Devise shall be void So of an infant which maketh his will publisheth it and dieth at ful age it is not of any effect because death without good Commencement giveth not effect And so the Commencement and the intent of it is to be considered in every act So the Disseisee of two acres in Dale releaseth all his right in all Lands in D. and delivers the release as a scrowle to be delivered the first of May as his Deed the Disseisor before the first of May disseises him of another acre and the release is delivered the 10. of May the right as to the 3. acre shall not pass because the first livery was void to this intent so the consummation of it which is the second livery So I have a Reversion of two acres that I. S. holdeth for life after I purchase the Reversion of another acre which I. S. holdeth for life after I. S. Attourns to B. for all three the third acre passeth not for Attornment passeth not more then was contained in the intent of the first Grant And so here That which is not in the intent at the begining Commencement of the grant shal not be in the intent at the consummation of the same but if he had published his will after he had purchased the new Land there it may be all might pass for by the new publication his intent shall be taken That all that which the words contain at the time of the publication will pass and by him if a man Devise a thing by a name certain as the Mannor of D. or white acre and after purchase the same it shall pass for it shall be taken that he intended to purchase it or otherwise the Will shall be void to all intents 39. H. 6 18. But here when he hath 10. acres and Devises all his Lands they are satisfied in passing of the 10. acres and there is no meaning by the words for the land purchased after the Will because the thing is not named certainly as the Mannor of Dale or White-acre Also he may not Devise the 12. acres because by Dier the Statute 32. and 34. H. 8. cap. 1. and 5. intend that the Devisor shall be seized at the time of the making of the will because it speaks of having Lands which he may Devise and here he hath not those at the time of the Devise Quaere of the case where he Devises by special name and after purchases it because of the word having Second point if the Land vests in the Heir of the Devisor where he dieth in the Life of the Devisor Manwood for the Defendant Because it is more consonant to the will of the Devisor and reason That the effect shall take place and the form perish rather then both should perish together as Devisee for life the Remainder over dies in the life time of the Devisor it is a good Remainder and shall have the immediate possession which is the effect yet the form was for to have by Remainder So if a Dean die or a woman Covert taketh another husband before their Devisor dies yet they are especially named Land shall vest in the new Dean and his Successors and in the woman which is now the wise of another according to the intent because it cannot according to the words and if the intent of a man in Conditions shall be performed as 4. H. 7. by Joy he ought to infeoff the survivor and his heirs onely where the other dieth a fortiori the intent in Wils shall be observed where the words cannot and the effect here is that the Heir shall have the Land and it is the form of the limitation that he shall have it by discent 21. R. 2. Remainder Ecclesiae-Sancti Andreae in Holborn good And Parson shall take because it was comprehended in the Devise although he was not named Lovelas and all the Justices besides Walsh to the contrary For by the death of the Devisee the Devise is countermanded for that the Devisee is not in rerum natura when the Devise took effect and in all gifts be they by Devise or otherwise there ought to be a Donee in esse capable when the thing ought to vest or otherwise the gift is void and the word Heirs limits the estate and not the persons which shall take and enables the Devisee as well to alien as to permit it of Discent for a Discent to the Heir is but a thing subsequent to the estate of Fee-simple first vested in the Devisee and a thing at his pleasure And things of sequel which ensue if the estate had been vested first as are Discent Dower Escheat are not good causes to make things vest in others then those to whom limited And therefore the heir shall not have the land here no more then the woman shall have dower or Lord Escheat if he had died without heir which should be so if it had vested in the Devisee And therefore if a man Devise a Lease or goods to I. S. which dies and afterwards the Devisor dies the Executor of I. S. shall not have them The speaking to the Son of the Devisee That he shall be his heir c. is void for that the Statutes of 32. and 34. H. 8. gives licence and authority to every man to Devise his Lands by his last Will and Testament in writing and those are sufficient in themselves for to make the thing devised pass and not regard words without writing by all the Justices but if he had published the Testament of new the Devisee should have the 12. acres in this case for that it had been as it were a new Testament but not his heirs Delamer against Barnard A Man in 13. H. 8. makes a Feoffment to the use of himself and his wife in special Tail Remainder to the husband in general Tail 10 El in K B â—…r Remainder in Fee to the brother of the husband and after in 26. H 8. The husband maketh a Feoffment to A. which infeoffs the Brother being in Remainder in Fee 2. E. 6. The brother infeoffs the Defendant the Husband dies the heir of the first Feoffee enters to revive the use to the Wife and adjudged lawfull 1. By the Feoffment of the Husband in 26. H. 8. all the estate of the Feoffee to use is drawn out of him and setled in the second Feoffee and by consequence all the uses which were created out of the first Fee-simple are discontinued and shall not be revived untill a re-entry of the Feoffee after the death of the husband and that he may enter then notwithstanding the Feoffment of the Brother 2. The Feoffment of the Brother in Remainder is not warranted by the Statute of 1. R. 3. cap. 5. for that he hath not use in possession nor in esse but only a right which he could not grant neither shall it be executed by the Statute of 27. H. 8. but onely may pass by Livery by way of
Extinguishment Also the Statute of 1. R. 3. extends to cestui que use in possession and not in Remainder or Reversion where they are derived out of one entire estate created by Feoffment for although that the uses are several yet the estate is entire which shall not be divided but he may make a Lease for years to commence after the particular estate determined which is Executory and divides not the estate but where the estate and uses also are several as a Lease for life to the use of one for life and the Reversion granted to another for life to the use of anther for life c. There he in Reversion may grant the Reversion by the Statute of 1. R. 3. for that it is in possession by reason of the severaltie of Estates Cestui que use by the Common Law cannot meddle with the Land for if he doth the Feoffee may punish him in Trespass And if the Feoffee will not permit Cestui que use for to receive the profits he hath no remedy but in the Court of Conscience for the land was so fully to the Feoffee by the Common Law as if no use had been of it And by the Statute of 1. R. 3. cap. 5. Cestui que use in possession onely may meddle with the Land for to make Feoffment Lease c. and the Feoffee is onely seized of the whole Fee to the use of Tenant for life or in Tail during his life or the estate Tail 4. H. 7.18 And the Feoffment of Cestui que use or in Tail or for life is warranted by the Statute of 1. R. 3. and pass the Fee until a Re-entry both by the letter and intent of the Statute for if a woman Covert was Cestui que use the husband might make a Feoffment and good during Coverture by the intent of the Law and the Statute which giveth to the husband during Coverture direction of the things of his wife and yet the claim of the Feoffees were not onely to his use but to the use of him and his wife 6. H. 7.3 So two joynt Cestui que uses in Fee the one maketh a Feoffment of the moity of the Land and good and binds the Feoffees yet were not onely seized to the use of him but by the intent of the Statute hath a moity of the Use presently and may give or Lease the moity of the Land where the estates are several and uses also every part granted by the Statute or several uses issuing out of one estate the several possessions of several uses may not divide the estate because there entire yet there Cestui que use in Remainder in Fee may make a Lease for years to Commence when his use shall be executed because then the lessor shall have interest in the possession and the Franck Tenement of the Feoffees shal not be taken away nor their estate will be divided but an estate for life or greater he in Remainder cannot make without the dividing of the estate or taking away of the Free-hold because it passeth presently and is not executory as a Lease for years is if the Feoffees to use makes a Feoffment upon Consideration or not to one which hath notice of the first use otherwise if Cestui que use maketh a Feoffment to such a person upon Consideration with notice or without Consideration and notice there all the first estate out of which all the uses do rise is taken from the Feoffees and a new estate is made by authority of the Statute the which new estate shall be to uses newly expressed or intended and not to the first use but by this all the ancient uses are discontinued the reason seemeth to be before that one use cannot be raised out of another The release of Cestui que use to the Disseisor of his Feoffees good and bars them of entry 14. H. 8.7 and 27. H. 8.29 a Disseisor infeoffs Cestui que use which infeoffs a stranger by this the right of the first feoffees is gone although that no use was in Cestui que use at the time of the Feoffment as if Cestui que use had released to the Disseisor But Plowden saith That the greater doubt will be here if the estate Tail was here determined if the first Feoffee might enter because the right of the use in fee was extinguished by the Feoffment of him in Remainder But here for that the particular estate in use continues which may not be defeated by him in Remainder this is good without doubt by some the entry of the first Feoffee shall gain the Fee-simple by the discharge of the use in Fee to himself for that it was extinct in the possession of the last Feoffee as of a rent which he in remainder had in the land before his feoffment this shall be extinguished in the Land by his Feoffment so of the use and by others the entry of the first Feoffee shall revive the use in Fee-simple to him in Remainder which was the Feoffor for that they could not have this at the time of the Feoffment made because not in esse but was discontinued at this time by Cestui que use in possession in Tail and by Plowden and Bromley he shall revive the use in Fee to the last Feoffee for that this passeth to him by the Livery and the first Feoffee hath nothing in the Land to his own use but onely to the use of the Feoffor And it was not his intent that the first Feoffee should have it to his own use but that the second Feoffee should have it and so by his re-entry he shall revive the use to the last Feoffee by the course of the Common Law for that the last feoffment was by the Common Law and not Warranted by the Statute of 1. R. 3. for the cause aforesaid but this point was left at large and if before R. 3. Cestui a que use disseises the Feoffees and infeoff others upon which the first Feoffees to use enter they shall be seised to the use of the last Feoffees because Cestui que use had given his interest to them and his intent appeareth that they shall have it and the first Feoffees shall not hold to their own use because it is a Collaterall thing annexed to the person touching the Land and not as a Rent issuing out of it And use is but confidence that the Feoffees to use shal do for the Feoffor as he would do if himself was seized and so it is a difference between a use and a Rent which Rent is only by reason of the Land but use also is annexed to the person Stowell against Zouch DIsseissor Levies a Fine with Proclamations the Disseissee dies after three years H. 11. El. in the common Pleas Entry sur Disseiseâ— and within the five years his Heir being within age the five years incur after the Heir commeth of full age and within one year after his full age enters And adjudged that his Entry
Marriage that she shall not refuse 9. H. 6.9 Recitall of an Indenture of defeasans concludes the party to deny the Deed. By the Counsell of the Plaintiffe the Act of Parliament cannot enure as a Confirmation of an Attainder and as a new Attainder also for then a man shall be twice convict of one Crime which shall be superfluous yet 1. H. 5.5 One attainted of Fellony may be arraigned of Treason because it is a higher offence and shall forfeit Lands of whomsoever holden if the Treason is committed before the Fellony but where offences are equall he shall not be twice attainted for one Deed shall not be a Confirmation and Grant of one same thing As the King recites by his Letters Patents that he hath made J. a Denison or hath manumissed him being his villain and confirm it and besides grants that he shall be a Denison or Free all this is but a confirmation because the Kings Patents shall not enure to two intents and therefore cannot plead the second Patent for his Legitimation or Manumission But the first Patent so 9. H. 7.2 before fol. 156. and 7. H. 7.14 The King grants Land by his Letters Patents and reciting them confirmes the Estate of the Patentee by the second Letters Patents by authority of Parliament and saith further that he gives and grants the same Land to the Patentee he shall plead the second by way of Confirmation because the Land pass by the first Patent not by the second if he doth not shew that the Land came again to the Kings hands after the first Patent But if the King grants Pasture for two Oxen in his Land and by the second Patent reciting his first Grant confirmes it and moreover giveth and granteth Pasture for two Oxen to the first Grantee there it shall enure as a Grant and confirmation also And the Grantee shall have Pasture for foure Oxen because they are severall things which are mentioned in the Confirmation and in the Grant And in the other Cases before it is one same thing mentioned in both and not severall Also the Statute recites none but persons therere cited to be attainted but the Plaintiffe was not attainted before for the reasons aforesaid therefore he is not attainted by the Statute as the King recites by name that such and such were Burgesses of L. and grants to the Burgesses before named to be quit of Toll c. that will take the benefit of it they ought to averre who is Burgess of L. And if the Plaintiffe be attainted by Act also and the Defendant will plead this so then his plea shall be double because he hath pleaded an attainder by the Common Law and also by the Statute But here it is not double because it is not a new attainder but a Confirmation And because he cannot plead the Confirmation without the thing that was Confirmed Also the Recitall and Confirmation by the Statute is not taken but pro ut And also the recitall being false shall be intended to be upon Information And therefore an averment lies against this recitall So a License to alien Lands holden of the King ut dicitur there he which hath the Lisence is not Estopped to say that it is holden of another then the King because the Tenure in Capite is not precisely affirmed but ut dicitur which taketh away all absolute affirmance 29. Ass 38. Also the Statute refers to an Attainder had before And so to a thing which is not inreâ— veritate for the cause aforesaid and therefore shall be void but if the things was before and wanteth force and effect then this shall be made good by the Statute and there the Act is good and hath power as to the thing 29. E. 3. 24. Grants Fitzh 100. The King reciting an Attainder by Parliament of one Mattravers by his Charter of Pardon reverseth the same and restores him and after this all is recited in another Parliament and Confirmed by the same Parliament and good for the Cause aforesaid So 38. H. 6.33 Parliament confirmes the first Letters Patents this enures according to the Effect and Purport of the first grant and shall not take away the Condition if any such be the King gives Land to J. S. the Parliament Confirmes it s a good grant And so when the Parliament Confirmes a thing which is defective it shall give power to it if it be Confirmed as here the Act shall be void to all purposes as 5. E. 4.40 and 41. If one Village hath Customes which is against the Law and Reason and no others and the Parliament Confirmes their Customes it is void because they had not Customes for things used meerly against the Law and Reason are not Customes notwithstanding such usage And if the branch of one Act recites another Act be it in the Commencement or Continuance it is void as 1. E. 6. c. 12 repeales all offences made Fellony after the Commencement of the reigne of H. 8. and by one branch in it this Statute excepts imbâ—sselling of goods by servants made Fellony in the seven and twentieth yeare of H. 8. commencing the 4. of February and continuing untill the 24. of Aprill whereas it finished the fourteenth of Aprill and so Statutes which misrecite things and are referred to them should be void and conclude no man And so here the Statute which recites that the Plaintiffe was attainted and confirmes it whereas indeed he was not attainted shall be void Coles Case IF one gives to another a mortall wound 13. Eli. whereof he languish the 12. of February and the Queen by a generall Pardon by Parliament Pardon all misdemeanors c. the 20. day of February and after the party dies Now this murther is Pardoned Adjudged for that the wound was a Misdemeanor and the cause of death and then by consequence all that which ensueth the Cause is also pardoned The end of the first Book Newis and his Wife against Larke and others A Man devise his Lands to his eldest Son in tayle M. 13. 14. El. in the Common Pleas. Remainder to his youngest Son in tayle the Remainder to the heires of his body the Remainder over in Fee and moreover his Will was that if any of his entaylees do wrong vex or molest any other of them for the sayd Lands or should Mortgage bargaine and sell c. the sayd Lands or otherwise incumber it other then to Lease it to them that from thenceforth every such person and his heires that shal so doe shall be excluded and dismissed touching the said intaile and that the conveyance of the intaile of the said Lands against him or them shall be of no force But that it shall descend and come to the party next in tayl to him as if such disorderous person had never bin mentioned in the sayd Testament And after the eldest Son levies a Fine and after he and the youngest Brother suffer a common Recovery and their Sister enter and by
the Court her entry is lawfull But the Writ was abated for that it was Coram Justiciariis predictis whereas there were no Justices named before 1. That the Fine and Recovery are such acts bargaines and incumbrances which make a forfeiture 2. The penaltie here inflicted for the forfeiture is a limitation which determines the estate Ipso facto without making any discondtinuance thereof by the Alienation and is not a condition by the intent of the Testator and hereby the determination of the estâ—…e the Fee and Frank-tenement is cast upon him in the next remainder that shall not alien without Entrie as upon an Escheat or dying without issue and hath the intent as if it were devised untill he shall alien The entry of Scholastica the wife of Newis becaus I. and F. C. her brothers levied a Fine suffered a common Recovery by the Court is lawfull But the Writ was abared for that it was coram Justic ' predict where no Justices were named before because the Fine and Recovery are such Acts Bargains and Incumbrances which make a forfeiture for that they give title and occasion to defeat the estates taile limitted to I. and F. C. For by the Fine with Proclamations the estate of I. is barrable and by the Recovery the Taile of him and F. is defeated and so within the words and the intent of the penaltie of the last Will of their Father H.C. Also the penaltie here inflicted for the forfeiture is not a condition by the intent of the Testator which will not that all the estates Tailes shall be defeated for entry for the condition broken by him in possession or any in remainder shall defeat all estates and put him which enters in of such an estate as he had before the condition made as 29. Ass pl. 7. Brooke Conditions inwords in a Will lik unto a condition shal not make a Condition because the intent of the party appears not to be to defeat all the state scilicet of him in remainder there also it is not a condition here because then he breaks it which enters for the condition But this is a limitation which determines the estate Ipso facto without making any discontinuance of it by the alienation and hereby the determination of the estate the Fee and Franck Tenement is cast upon him in the next remainder which aliened not without entry as upon an Escheator dying without issue and hath the intent as was devised quo usque he shall alien or incumber So land given to I. in tail so long as I.S. hath issue of his body which dieth without issue there it shall revest presently without entrie for words named in a Will if they are not apt shall be drawn to the intent and the Law submits it self to the Will as to the Parliament as Dyer termed it in matter order and form So a gift of Land so long as such a one is Abbot or during coverture is a limitation So Matrimonii prolocuti there the estate shall be defeated by the intent without expresse Condition in Deed Fitzh nra.br ' 201. E. A man devises to a woman in London upon condition that if she marrie the land shall remain to his sonne in taile with remainder over the woman marries the sonne shall have ex gravi querela by Fitzh by Dier he may enter So it shall be taken as a limitation yet it sounds as a Condition And by Dier a condition in deed in a conveyance made By Fitz-James 28. H. 8. was taken by limitation a fortiori where it is by last Will where the intent shall rule the words and the words not the intent and the intent shall be observed in the exposition of Wills and of the Testator in making of his Will hath a Power like to an Act of Parliament by Dier and the intent in a devise shall make Estates passe contrary to the Rules of the common Law in Deeds or other gifts as a Remainder is good without an Estate precedent So where the particular Tenant entailed disagrees see 34. E. 3. where it depends upon condition so upon a devise to the sonne after the death of his wife there she takes an estate for life although it be not given to her so 10. H. 7.20 Cestuy que vse devises that a woman his Executrix shall sell the land she sells it to her second husband good So a devise to a man and his heires males which hath issue a daughter who hath issue a sonne he shall inherit 28. H. 8. by Dier otherwise Bracebridge against Cooke LEssee for yeares grant his terme to the wife of the Lessor Tr. 14. El. in the Kings Bench in E Firme and a stranger the wife dies the stranger shall have the whol terme and land by survivor Adjudged 1. For that the interest of the husband by reason of the coverture severs not the Joinctureâ— nor alters the possession of the terme or other chattells realls of the wife but is possessed of them in the right of his wife so that if a stranger outs them the wife ought to joyn with the husband in Ei firme and she shall have judgement as well as the husband and therefore if the husband charges it or if he devise the terme and dies the devise is void because he had the Estate in him at the time and before the time of his death But the property of Chattells personalls is devested out of the wife and vests in the husband because of the coverture and therefore if one gives goods to a Fem covert and a stranger the joyncture is presently severed by the Law and she and the stranger shall be Tenants in common 2. The immediate Fee and frank Tenement that the husband hath in his owne right shall not drown the terme which he hath in the right of his wife where she is sole Lessee nor the moitie of the terme where she is joint Lessee as here and the operation of the Law shall not do a thing contrary to equity and reason to the prejudice of another namely in Chattells Realls which are things of continuance because the husband by expresse act hath not given nor altered it as he may by making of a Feoffment of the land or new Leas c. But hath left it to the judgement of the Law The Law preserves the estate of the wife which estate as to the wife is disjoint from the Freehold and Fee-simple but a rent granted to the terrenant and a stranger the Tenant dies the other shall not have all because the Moity drownes in the land and therefore that was not in joyncture at the time of the death of him which first died and the other shall not have all as survivor But the rent here shall be apportioned because of the occupation that every one hath per my et tout of the profits But husband and wife here cannot joyn in E firme with the stranger But the Husband shall use his reall action upon an
Land to him for fifty foure yeares rendring Rent hath issue and dyes before any Proclamation made and after the Proclamations passe and after the Husband and Wife dyes Adjudged that the Lease is good against the issue of N. in tayle by reason of the Rent otherwise it were if the Rent had not been reserved First The Lease had not been voyd against N. T. the Father himselfe if he had survived the Husband and Wife if it were by words notwithstanding it be a present contract because it depends upon an estate for life which is uncertaine when it shall determine otherwise it is if the first had been a Lease for yeares which containe certainty there the second Lease shall be voyd for the first terme except that it be by Deed poll with Attournment in which case it shall enure by way of a grant of the Reversion if the party will use it so or by Indenture or Fine which are matters of Estoppell Secondly The Lease is but voidable against the issue because of the Rent which is a recompence otherwise it is of a charge for it shall be voyd by the Remitter and inasmuch as this contingent Lease is not avoided but continues during the Proclamations the Statute of 32. H. 8. maketh this a barr against the issue during the terme Thirdly A Lease by word made by the Husband and Wife is the Lease of the Husband onely and not of the Wife possession without title is sufficient to make an Advowry for dammage feasant protection pleaded for part and Inter alia good by the Rule of the Court A Fine pleaded by way De finalie Concordia facta fuil and not that he levied a Fine and also pleaded that it was acknowledged in the Kings Court without saying in the Common pleas is good and 22. H. 6.13 A Fine is a Record although it be not ingrossed and shall be executed Fourthly How and in what degree this Lease passe at the beginning by the Fine The estate of N. not altered by the Fine of a stranger which had not any right or Estate in the Land but is Estopped for his life to say otherwise but that he receives fee simple by the Fine Leases by word by Deed Poll by Indenture are to be considered how they shall enure As if a Lease be made by words without Deed of Lands by one that hath see simple for one and twenty years to commence presently rendring a rent and after the same day maketh a new Lease by Paroll to another for the same terme or for a lessor terme the second Lease is void although that the first Lessee surrenders or forfeits because at the time of the first Lease he hath not but a Reversion and no interest in him to contract for the possession And he that will by contract make another possessor of the thing ought to be proprietor of the same himself As if one sells a Horse upon condition that the Vendee shall pay him forty shillings at Easter and after he sells the Horse to a stranger and after the first Vendee payes not the forty shillings at Easter and the Vendor reseiseth the Horse the second Vendee shall not have the Horse because the Vendor had him not at the time of the sale the Condition only inables him not to contract for the property and possession which he then had not but if the Lessee for one and twenty years be and the Lessor the same day grant the Reversion by Deed for twenty one years to commence presently it is good with Attournment and he shall have the Reversion during the first Lease and the Rent as incident thereunto because it is another thing then the possession So a Lease by word for years to commence after the first year is good because it is of another thing then the first Lessee had because the second Lessee is to have the possession after the first possession and interest expired A man leases for one and twenty years in possession and presently maks a Lease of it for one and thirty years by word this is good for the last ten years and Executory for it for a Lease for years is Executory and severall for every yeare and day and is as to execution as severall contracts And therefore such contract may be good in part and void in part So if he Leases for 21. years to commence 10. years after and he maketh a Lease for 31. years to commence presently it is good for the first 10. years and void for the last 21. years for that he had contracted before and was certain although that the first Lease were forfeited or surrendred otherwise it is if the first Lease had bin incertain as a Lease for life there the second Lease had bin good after the Tenants life not during his life although he surrendred or forfeited unlesse it had bin by Fine or Indenture because Estoppels if the second Lease for the same years be by Deed Poll there the reversion with the rent pass by Attornment by the demise of the land by the name of Land if the possession cannot as a Reversion upon an Estate for life passeth by bargaine and sale of the land by Deed inrolled and the Grantee may use his Deed as he pleaseth and therefore may use it as a Grant of a Reversion with attornment otherwise it is if it be by word because the Reversion for years cannot be granted by word But if Lessee for years will use a Leas Poll as a present Leas where he hath not attornment the Leas is void although the first surrendred or forfeited as it is if it were by word because a contract by Deed Poll passeth not that which another then injoyes But if the second Lease were by Fine or Indenture and the first surrendred or forfeited it is good for if one leases land to me which he hath not at the time by Fine or Indenture and after purchase it or it desends to him I may enter and occupy by Estoppell and I shall be compelled by Estoppell to pay the Rent because every one is concluded to say but that the land passeth in possession for fourty five yeares by Estoppell and shall be good in estate to have the other yeares because they are not incurred in the life time of the Tenants for life for if the Lease for fourtie five yeares had been by word and the particular Tenant for life had died the Lessee should have it against the Lessor If the estate given by the Fine is defeated the Fine shall be void although the Proclamations passe after for the Fine is the Principall and the Proclamations but accessary to the Fine as Tenants in taile disseised levies a Fine to the disseisor Sur conusans de droit or sur release and dies there the issue if he enters before all the Proclamations are passed is remitted and is not harred for that 32. H. 8. which saith that Fines after Proclamations bars tayle intends of Fines remaining
away from another by wrong Title is where a man hath cause to have the thing which another hath and hath not Action Condition is a possibilitie to have Title Action is a suite given by the Law Interest is part of the Estate of the Land as a Lease for yeares or execution by Statute fol. 484. 6. The answer to the third Objection The Lessee ought not to shew in pleading that he is not excepted in the Statute for that he gains not any new thing but will retain the old and also because the Statute is to his disadvantage but that he shall take benefit of a Statute shewing it 7. For answer to the fourth Objection it was said that admitting that the Fee here shall be forfeited to the King without Office yet the Condition shall draw it out of him without Petition or Monstrans de droit by some but Quere thereof for otherwise it shall not vest at the time of the death of the Lord Lovell it shall not vest at all for it is appointed to him as if the Lessee here had entered into Religion and the Lessor without being attainted had died without issue after the Lessee is deraigned he shall not have the Fee because it may not vest in him at the time of the Condition performed So if he was disseised at that time And so here for to avoid the inconveniency by the operation of the Law or former agreement a thing shall be devested out of tho King at the instant of the Condition performed without any such circumstance As Tenant in Taile discontinues the Discontinuee infeoffs the King by Deed inrolled the King Leases to the Tenant in Taile for life with the Remainder to his Issue for life the Lessee dies the Issue is remitted by the remainder falling to him and the Fee devests out of the King without any circumstance And so a Remitter shall defeat the Estate of the King and an Office of the King shall defeat the Remitter fol. 488. as 3. E. 4.25 in the Earle of Northumberlands Case by relation or if the Disseisee enters after the Attainder of his Disseisor Possession of the King by Office shall not be removed without Petition but if he enter before his Disseisor be attainted he shall be removed without Petition because the Title of the King there is more antient and the Office shall have relation to the Attainder onely for the profits although it relate to the time of the Treason for to avoid mean Acts and Incumbrances So Tenant in Capite maketh a Lease for life rendring Rent with clause of Re-entry for not payment and dies his Heire within age enters for the Rent arere An Office is found the entry of the Heire for the Condition broken is avoyded by Lovelace for the possession of the Heire by force of which he entered is utterly defeated by Relation which intitles the King to the Grant And so the entry of the Heire for a thing not due to him shall be adjudged Tortius by relation So if Trespasse 19. E. 4.2 where for things coming of the Land as Grasse c. Office avoids the punishment against those which doe the wrongs and takes it away by relation of the Office which Intitles the King because of the Escheat before the Trespasse an Action once good But for the entry into the Land or breaking his Fences which ariseth not from the Revenue of the Land the Action is not gone by the Office If an Office virtute Commissionis be pleaded he ought to shew the authority given by it and the execution thereof accordingly because persons appointed by Commission have not any other then what is appointed to them by the Commission otherwise it is of an Inquisition taken virtute Officii before the Escheator Sheriffe Steward of a Leete c. for that their authority appeareth to the Court judicially because it is known by the Law for that they are Officers of the Common Law A Remainder ought to vest when it is appointed otherwise it shall never vest The Kings Pardon shall not excuse any man for the repairing of a Bridge which ought to do it because it shall not take away the Interest that the Subjects take therein So a man pledgeth a Jewell for ten pound and after is attainted the King shall have it without paying of the ten pound So 13. R. 2. the Earle of Kent had return of certain Cattell in Replegiari and the Proprietor of them is attainted the Earle shall keep them against the King untill he be satisfied of the thing because the Prerogative will not give any prejudice to another Ludford against Gretton A Warrant to make Letters Patents M. 18. 19. El. in the Kings Bench Trespas was directed by H. 8. to the Chancellor which entered not the day of the Receit of the Watrant in the Record according to the Purview of the Statute of 18. H. 6. cap. 1. And yet the Letters Patents made thereupon were adjudged good For that the Purviewe of the Statute maketh Letters Patents void onely for the variance between the date of the Patent and the day of the entery of the Warrant And the Court held three manner of Patents good upon the Statute 1. If no Warrant be made at all it is good by the Common Law and not void by the Statute because there is not any variance 2. If there be a Warrant and the day of the delivery of the Warrant be not entered as in the Principall Case 3. If the day of the delivery of the Warrant be entered and the Patent dated after the day of the delivery for this variance is out of the mischief of the Purview which was in antedating of Patents before the delivery of the Warrant and not after dating and yet is within the words but out of the intent of the Act. Records shall have Relation to their date and cannot be averred contrary to the date not to vary from it because it tends to the discredit of an Officer of Record Deeds relates to the Livery and date in Deeds concludes not any to aver the contrary Grendon against the Bishop of Lincolne HENRY the eighth being seised of an Advowson in the right of his Crown P. 19. El. in the Common Pleas. Quare Impedit presents J. S. and dies E. 6. by his Letters Patents grants the advowson to the Dean and Chapter of L. and their Successors in Fee and also grants to them License and Liberty virtute authoritatis sue Regiae supremae Ecclesiae qua fungimur that they shall retain the said Advowson and all the Profits thereof for ever to their proper uses whensoever the said Church shall become void And after the death of the said Incombent the said King E. 6. present his Clerk to the said Church which was Admitted Instituted and Inducted and adjudged no usurpation which shall put the Dean and Chapter out of possession If the Plaintiffe alledge matter effectuall as discent c.
So the Husband maketh a Feoffment of the Land of his Wife upon the condition which is broken the Feoffee levies a Fine the Husband dies in the fourth year after Proclamations having Issue by the Wife after the Wife dies and five years passe the Heir is barred to enter as Heir to the Father for the Condition but shall have five years from the death of his Father as Heir to his Mother for her right for the cause aforesaid by Saunders Ireland and Scotland are severall Realms But Scotland was holden of the Crown of England and was within the Fee and â—igniory of the Crown of England and he which is in any of the two Realms shall be said out of the Realm and shall be within the Exception of 4. H. 7. So Ideots Lunaticks and they which have the lethargy shall be comprehended in the words of Non-sane-memory as well as Mad-men For Zouch Peace which is the end of all Law described and the necessity and benefit thereof and those Laws which carrie most peace are the most estimable And the Statute which Ousts Nonclaim was to the universall trouble of all the Realm for the avoyding whereof and to make Fines to have their antient force the Act of 4. H. 7. was made and the Preamble of it is to be considered because it is a Key to open the minds of the Makers of the Act and the mischiefs that they intended to remedy and the preamble shews that the Makers of the Act were of Opinion that Fines ought to be of greater force for to avoid contention then they were before the Statute of Non-claim and now is used to the contrary viz. to the universall trouble of the Kings Subjects and therefore they were Enemies to former rights because that stirred up many Suits and made the Purview strongly against it Et lex si prospiciat majori parti retilis est All Infants are bound by the generall Purview which containeth them in the Exceptions As an Infant levies a Fine Proclamations pass he shall not have error yet within age for no Infant is excepted But he that is not Party to the Fine by Southcot and Walsh he is excepted out of the generall Purview in the intent of the Makers of the Act. And Stowell the Heir is not within the Purview nor Exception of the Statute for that he had not right at the time of the Fine levied but then the right rested in his Ancestor which was disseised for the Exception is always an exemption of that which is contained before in the generall words otherwise could not be excepted As a Feoffment of a Mannor except such an Acre which is not parcell of it or a Lease of all Lands of the part of the Father except Lands of the part of the Mother is a void exception because this exception was not in the Feoffment nor Demise or right or not right is not the matter but claim or Nonclaim within five years is the matter where a Fine is pleaded to conclude any And this Tried by issue by the one or the other maketh an end of the matter Catline a Writ of deceit by the Lord in ancient Demeasne made 20. years after Proclamation upon a Fine Levyed by his Tenant shall make void the Fine and the Tenant shall be restored to the land because he claims signiory and services out of the Land and no right to the Land when the Fine was levyed and therefore is out of the purview which extends not from whom he claims or had right in possession Reversion or Remainder to the thing comprised within the Fine when the Fine was Levyed upon matter rising before The first saving giveth five years after proclamation to those which have right and their Heirs with a Condition annexed to it viz. so that they pursue their Title Claim c. within five years after Proclamations and as the saving is general to all Heirs notwithstanding they have their imperfections of Nonage Insanity c. So is the Condition general and extends to all Heirs whatsoever they are and this was the cause of the Judgement for otherwise the saving shall be for all heirs and the So shall be of all Heirs within age and then the So is not so large as the saving And so the Heir within age is bound to the Condition of the first saving as well as he is saved in the same because general tranquillity is more favored then an Infant and no time shall be gained by exposition or equity beyond the words of the act where the Act as here to strains all men to a time certain for the common tranquillity of the people and Infants had been bound by the general purview of 32. H. 8. c. 2. if they had not been excepted there And therefore if one of the Terms limited by 4. H. 7. be adjourned because the Statute saith then next ensuing all the Proclamations before are void until the Statute of 1. Mar. cap. 7. Rastall Fines 12. because time limited by the act ought to be pursued and once attached in part ought to be continued So the 5. County upon Exigent ought to be the next to the fourth or it is discontinuance and Allocatur Comitatus shall not aid but is error And therefore an Infant at the Common law shall be bound to year and day otherwise f. 365. where by the Statute of 4. H. 7. The five years Commence in the father being of full age Non-claim within the time limited by the Common Law shall lose right and infancy there shall not aid the party as 7. H. 6.32 Nonclaim by the Lord of his villain by a year and day which hath fled into ancient Demeasne So 15. E. 4. 6. Nonclaim of liberties before Justices in Eire So wood of another within a Forrest of the Kings seised into the Kings hand shall be forfeited by Nonclaim within the year and day before fol. 57. So if a Bastard die seised and Mulier claims not So 2. H. 7.10 one shall lose his appeal of Murther if he bringeth it not within the year and day So by the custom of some Mannor one shall lose Copy-hold if he claims it not within a year and day after the death of his ancestor a fortiori time shall be peremptory where it is limited by the Statute for the common repose of the Realm which shall be more favored then the private profit of any single person be he Infant of non sane memory c. by Carus and Dier the right of a Mulier within age is bound by discent of the bastard because the Law in this case is a binding Law by Southcot and Sanders contrary because infancy shall excuse Laches of entry 31. ass 18. 22.36 ass 2. 33. E. 3. The second saving giveth new 5. years to other persons and hore Stowel is the same person which had five years with his ancestor by the first saving because the saving and the so is in the Copulative and the word